The Defendant applied for Summary Dismissal of the Plaintiff’s claim on the basis that it was statute barred by virtue of the Limitations Act, RSA 2000, c L-12. The issue of whether the Statement of Claim had been filed within the applicable limitation period turned on when a gravel quarry had been built. There was conflicting and unclear evidence before the Court as to who had built the gravel quarry and when the gravel quarry had been built.

With respect to the test for Summary Judgment under Rule 7.3, Master Schulz cited the test set out in Windsor v Canadian Pacific Railway, 2014 ABCA 108 (CanLII): whether there is any issue of “merit” that genuinely requires a Trial; or conversely, whether the Claim or Defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily. The Court further noted that the questions to be answered on a Summary Judgment Application are: (a) can a disposition be made that is fair and just to both parties on the existing record; and (b) In light of what a fair and just process reveals, is there merit to the Claim?

Master Schulz was not confident that a disposition that was fair and reasonable to both parties could be made in light of evidence before the Court. Accordingly, Master Schulz held that this matter was not suitable for summary disposition and, as such, dismissed the Defendant’s Application.