CLARK BUILDERS AND STANTEC CONSULTING LTD v GO COMMUNITY CENTRE, 2019 ABQB 706
2.6: Representative actions
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
13.6: Pleadings: general requirements
The Defendants had unsuccessfully brought an Application for Summary Dismissal. On Appeal of the Master’s Decision before Justice Renke, the parties agreed that the standard of review on all issues pursuant to Rule 6.14 was correctness. Justice Renke set out to consider Summary Dismissal under Rule 7.3 through the framework as clarified in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII).
The Plaintiff relied on an unsworn report appended to an Affidavit, something the Defendants argued was offside Rules 7.3(2) and 13.18, both of which require that an Affidavit submitted in support of final relief be sworn on the basis of personal knowledge. The Court noted that the Plaintiff was responding to the Application for final relief, and was therefore entitled to rely on hearsay evidence.
Ultimately, the Court was satisfied that Summary Dismissal was appropriate given that the Plaintiff had no “beneficial, proprietary, or possessory rights” in the property which was the subject of the loss. This finding was applicable both to the express claim in negligence, as well as the claim in negligent misrepresentation which the Court held had been put in issue by the facts pleaded pursuant to Rule 13.6. This result was not avoided through characterization of the claim as a representative Action pursuant to Rule 2.6, as the Plaintiff had not complied with the formalities of that Rule.View CanLII Details