CONCREATE USL LTD v CALGARY (CITY), 2012 ABQB 400
1.2: Purpose and intention of these rules
7.1: Application to resolve particular questions or issues
7.3: Summary Judgment (Application and decision)
The Plaintiff brought an Application for Summary Judgment. The Defendant responded with a Cross-Application for Severance of damages from liability issues.
The Court referred to Manufacturers Life Insurance Company v Executive Centre at Manulife Place Inc, 2011 ABQB 189 as authority that the test for Summary Judgment under the “former” Rules has not been altered by Rule 7.3. McMahon J. referred to Pioneer Exploration Inc v Euro-Am Pacific Enterprises, 2003 ABCA 298, a Court of Appeal decision articulating the test for Summary Judgment as follows (paragraphs 18 and 19):
First, the plaintiff bears the evidentiary burden of proving its cause of action on a balance of probabilities. Each and every fact necessary to support the claim must be proven…
After the plaintiff has proved its case on a balance of probabilities, the evidentiary burden shifts to the defendant but the ultimate burden remains, as always, with the plaintiff. The defendant can avoid a summary judgment in favour of the plaintiff by proving that there is a genuine issue for trial. If the defendant meets this evidentiary burden, the plaintiff fails to meet its ultimate burden. It must be beyond doubt that no genuine issue for trial exists.
In this case, the Plaintiff did not meet the stringent test for Summary Judgment.
Turning to Rule 7.1, McMahon J. referred to Gallant (Litigation Guardian of) v Farries 2012 ABCA 98. His Lordship indicated that Gallant quashed any suggestion that the new Rules effected any significant change in the law regarding the splitting of Trial issues. McMahon J. noted that, according to Gallant, the question remains the same: would a severance of issues save time and money in the particular case? McMahon J. quoted the following excerpt from Gallant (paragraph 24):
…[I]t has always been the presumption in our civil practice that all the issues are decided at once, in one trial or proceeding. Bitter experience has shown that searching for savings in time and money by chopping litigation up into little pieces simply does not work.
His Lordship also noted that the poverty of a party may sometimes influence a decision to sever an issue, though that was not a factor in this case.
The Court refused the Cross-Application for Severance of Trial issues, since there was no preliminary issue, no limitation period issue, no clear condition precedent to the suit – any of which may have been suitable for severance. Further, there was “no neat question of law or interpretation of any one document”, as described in Esso Resources Canada Ltd v Stearns Catalytic Ltd (1991) 114 AR 27.View CanLII Details