Ross J

7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Defendants applied for Summary Dismissal of the claim against them by the Plaintiff, Clear Hills Development Corporation. The Defendants had brought a prior Application in 2014 to summarily dismiss the claim. Ross J. dismissed the earlier Application, as it did not meet the test for Summary Dismissal, and suggested that the Summary Trial Rule might eventually be employed to dispose of some of the issues. The Defendants argued that the subsequent Application was appropriate because the law had developed since the 2014 Summary  Dismissal Application.

The Court agreed that the law pertaining to Summary Dismissal had developed since the 2014 Application; specifically, Ross J. noted the 6 step process for Summary Judgment Applications formulated by Master Schlosser in 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301. Justice Ross examined the parties’ evidence using the 6 step analysis, and based on the lack of evidence from both parties, among other deficiencies, dismissed the Summary Judgment Application.

The Plaintiff sought solicitor and client Costs or enhanced Costs on the grounds that the Application was essentially a repeat of the 2014 Application and that it was res judicata. Ross J. held that the Application was not res judicata, as the 2014 Application did not result in a final Order. Additionally, the Court was not prepared to characterize the Application as an abuse of process. The Court awarded the Plaintiff Costs based on Column 4 of Schedule C, payable forthwith.

View CanLII Details