CONDOMINIUM CORPORATION NO 311443 v GOERTZ, 2016 ABCA 362
Mcdonald, bielby and wakeling jja
7.3: Summary Judgment (Application and decision)
9.30: When affidavit of value must be filed
9.31: Other material to be filed
The Defendant, Goertz, was sued by the Plaintiff Condominium Corporation for arrears on condominium fees and foreclosure. Goertz counterclaimed. The Plaintiff sought Summary Judgment of their Claim, and Goertz cross-applied for Summary Judgment of his Counterclaim. The Plaintiff was successful, and Goertz’ Application was dismissed. Goertz appealed. The Justice at the Court of Queen’s Bench had relied on the principles stated in Hryniak v Mauldin, 2014 SCC 7 (CanLII), and had concluded that Goertz’s Counterclaim could be summarily dismissed because all necessary findings of fact could be made from the record, there were no credibility issues and summarily dismissing Goertz’s Counterclaim would be proportionate, faster and less costly than a full Trial. An Order for foreclosure was granted.
Goertz argued that the foreclosure Order should be set aside because, among other things, no Affidavits of value or certified copies of title had been advanced by the Respondents in accordance with Rules 9.30 and 9.31. The Court noted that Rule 9.30 specifically permits a Court to dispense with the filing of an Affidavit of value before granting a redemption or foreclosure Order. In addition, the Court observed that certified copies of title had been previously filed. Accordingly, the Court held that there was no merit to Goertz’ argument, and the Court had not erred in granting the Order.
The Court of Appeal concluded that the test for Summary Judgment under Rule 7.3(1) had been properly applied, and that Goertz had failed to establish that the Court of Queen’s Bench had erred in granting Summary Judgment as against Goertz. The Appeal was dismissed.View CanLII Details