wittmann Cj

7.3: Summary Judgment (Application and decision)

Case Summary

The Defendant, Pembina Pipeline Corporation (“Pembina”), applied for Summary Judgment with respect to allegations in a Re-Amended Statement of Claim. CCS Corporation (“CCS”) alleged that Pembina entered into negotiations with CCS about business opportunities that the two corporations could develop together; however, Pembina subsequently encouraged former employees of CCS to establish Secure Energy Services Inc. (“Secure”) as a competitor to CCS, for the purpose of using CCS’ confidential information to pursue the same business opportunity without CCS.

In June 2013, Pembina was successful in having the allegations contained in 3 paragraphs of the Amended Statement of Claim Summarily Dismissed. In those proceedings, the Court noted that Rule 7.3 allowed for Summary Judgment in respect of “all or part of a claim” and dismissed the allegations on the basis that there was no evidence provided by CCS that supported its claims in those paragraphs. Specifically, there was no evidence that confidential information was exchanged between CCS and Pembina in the course of the negotiations between the parties. This finding was upheld by the Court of Appeal.

In considering the subsequent Application for Summary Judgment, Wittmann C.J. noted that since the first Summary Judgment Application was heard, the Supreme Court of Canada and the Alberta Court of Appeal had considered the proper approach to Summary Judgment Applications in Hryniak v Mauldin, 2014 SCC 7 (CanLII), Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 (CanLII), and 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 (CanLII). Wittmann C.J. noted that the mere assertion of a positon by the non-moving party in a pleading, or the mere hope of that party that something will come to light at Trial, is not sufficient for confirming that the non-moving party’s case has merit, or that there is a genuine issue for Trial. The crucial consideration is whether the circumstances require viva voce evidence in order to properly resolve the case.

Wittmann C.J. considered each of the allegations in the Amended Statement of Claim. When examining the evidence for each allegation in light of the findings made in the first Summary Judgment Application, His Lordship held that there was no merit to all but one of the allegations raised in the Amended Statement of Claim. The Court found no evidence to support the allegations that Pembina persuaded, induced or procured Secure to unlawfully use CCS’s confidential information, but did find some evidence that Pembina might be held jointly or vicariously liable for use of CCS’s confidential information by another Defendant. Based on this, Pembina was entitled to Summary Dismissal of all of CCS’ claims against it, with the exception of the vicarious liability claim that arose from the alleged use of CCS confidential information by another Defendant.

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