CORREA v 368753 ALBERTA LTD, 2018 ABQB 938


7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants, 368753 Alberta Ltd. (“368”), and Capital Leasing Investment Corp. (“Capital”) appealed the decision of Master Farrington dismissing the Defendants’ application for partial Summary Dismissal against the Plaintiff, Juan Correa (the “Plaintiff”).

In 2004, the Plaintiff had entered into a joint venture agreement (50/50) with a third party for the purchase of certain industrial lands located in Calgary (the “Lands”) through the third party’s company 368. To finance his portion of the purchase price, the Plaintiff obtained a mortgage from Capital (the “368 Mortgage”). The Plaintiff executed a personal guarantee in respect of the 368 Mortgage (the “Guarantee”). In May of 2005, Capital purchased the third party’s 50% interest in 368. A series of actions were subsequently commenced in relation to the financial obligations owing on the 368 Mortgage, Guarantee, and subsequent arrangements between the now joint venture partners.

In March of 2018, Master Farrington provided oral reasons for dismissing the entirety of the Plaintiff’s and Defendants’ Applications essentially finding that there was too much conflicting evidence for the matter to be resolved in a summary fashion. Master Farrington reviewed the evidence and concluded there were significant differences in the numbers Capital alleged were owed under the 368 Mortgage and the Guarantee and therefore declined to grant the Application for Summary Dismissal.

On Appeal, after a review of the relevant jurisprudence and procedural history, Justice Bernette Ho agreed with Master Farrington that the case was not suitable to be resolved in a summary fashion. Bernette Ho J. determined that: (1) there were significant questions around whether and to what extent the Plaintiff remained liable under the 368 Mortgage and Guarantee; (2) viva voce testimony would be required to resolve the issues between the parties, as there were significant credibility issues and conflicting versions of events; (3) There were legal issues which could not be determined in a summary fashion, especially without a determination of material facts; and (4) even if Her Ladyship were in a position to find liability on a narrow issue, Bernette Ho J. did not believe that doing so would significantly advance the underlying Action.

Justice Bernette Ho concluded by finding that because the matter had already been set down for a three-week Trial, and that significant Trial time would be saved by finding liability on one small issue, it would therefore not be efficient from a judicial economy perspective to split the issues and the Trial Judge should be given the opportunity to hear and determine the entirety of the matter.


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