master schlosser

7.3: Summary Judgment (Application and decision)
10.42: Actions within Provincial Court jurisdiction
13.18: Types of affidavit
13.6: Pleadings: general requirements

Case Summary

The Crown applied for Summary Judgment on a student loan debt. The Defendant formally admitted the principal debt, but there was a dispute regarding the amount of interest. The Defendant took the position that interest was not owed because he was a full time student in the United States for the bulk of the relevant period. The Crown’s position was that the Defendant had not completed the form required to obtain interest-free status. Master Schlosser noted that the amount in dispute was small and could have been heard in Provincial Court but for the Crown’s policy not to commence proceedings in a Court in which the Crown cannot be sued.

Master Schlosser considered four issues in his Reasons. First, Master Schlosser found that even though relief from forfeiture was required to be pleaded pursuant to Rule 13.6 - which sets out the general requirements for pleadings - in these circumstances, there was no prejudice and it was appropriate for the Court to excuse the defect in the pleading. Second, Master Schlosser considered whether the Crown’s evidence met the requirements of Rule 13.18, which sets out the required form and contents of affidavits. While some of the Crown’s evidence was business records admissible without the necessity of calling the author, much of the Crown’s evidence was based on information and belief, and thus was not admissible on the central point in issue in the Summary Judgment Application. Third, Master Schlosser reviewed the admissible evidence and determined that the Defendant had substantially complied with the relevant statutes and would have enjoyed interest-free status if there was a form for his particular situation. Fourth, Master Schlosser determined that, although there were various bars to relief, proportionality required the Court to prioritize dispute resolution.

Based on the above, Master Schlosser granted the Crown Summary Judgment pursuant to Rule 7.3 for the principal debt, but for interest only for the period after the Defendant completed his studies in the United States. Master Schlosser awarded the Crown Costs under Column 1 of Schedule C, reduced to 75% of Column 1 on a discretionary basis on analogy with the application of Rule 10.42, which applies to actions brought that are within the subject matter of the jurisdiction of the Provincial Court.

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