COLE v BROWER, 2017 ABQB 766

jerke j

7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff sued the Defendant lawyer for negligence in preparation of a matrimonial property agreement and her ex-husband’s Will. The Plaintiff also sued her ex-husband’s estate and the Personal Representative thereof, seeking rectification of the matrimonial property agreement and Will, and other equitable relief. The Defendants applied for Summary Dismissal of the Plaintiff’s claims against them, arguing that the claims were barred by the Limitations Act, RSA 2000, c L-12.

Justice Jerke referred to leading authorities on the interpretation of Rule 7.3 and determined that an examination of the existing record could lead to a fair and just disposition of most of the claims, specifically the claims in negligence and those for rectification. However, the equitable claims could not be decided fairly on the record, and in any case the Defendants did not seriously argue that the equitable claims were barred. As a result, Jerke J. granted the Application for Summary Dismissal of the negligence claims and rectification claims, but declined to dismiss the equitable claims.

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