The parties were involved in a complex dispute over their late mother’s will and estate. Following lengthy surrogate proceedings, the Plaintiffs commenced an Action against the Defendants, and the Defendants counterclaimed. The parties then filed competing Summary Judgment Applications against each other.

Michalyshyn J. considered the Summary Judgment Applications and observed that the legal test for Summary Judgment is now settled, and followed the principles set out in Hryniak v Mauldin, 2014 SCC 7. Justice Michalyshyn referred to recent authorities, and held that the question is whether there is any issue of merit that “genuinely requires a trial” or “whether the claim or defence is so compelling that the likelihood it will succeed is very high”. The test for Summary Judgment requires the Court to examine the available facts and determine if a fair and just disposition can be made on the existing record. Justice Michalyshyn reviewed the available evidence and stated that it was not sufficient to allow the Court to make the necessary findings of fact to support the Plaintiffs’ case. The Plaintiffs’ Summary Judgment Application was dismissed.

Before examining the Defendant’s Counterclaim and Summary Judgment Application on the merits, Michalyshyn J. considered two threshold issues raised by the Plaintiffs. One of the Counter-Claimants was not named as a Defendant in the Statement of Claim. The Plaintiffs argued that, based on Rule 3.56(1), only a named Defendant can advance a Counterclaim. The Court agreed that while there was a strong appeal to the concept of adding a new Plaintiff by Counterclaim to ensure that all necessary parties are before the Court, to allow a Counterclaim made by a non-party would in effect “re-write” Rule 3.56(1).

In order to resolve whether the new Counter-Claimant could be added, Justice Michalyshyn considered s. 8 of the Judicature Act, RSA 2000, c J-2, and noted that the Courts have been mindful of the purpose of the Rules as set out in Rule 1.2, which is to facilitate the “quickest means of resolving a claim at the least expense”, to provide “an effective, efficient, and credible system of remedies and sanctions” and, most importantly, as set out in Rule 1.2(1), to “provide a means by which claims can be fairly and justly resolved”. The Judicature Act, at s.8, grants the Court the power to determine matters in dispute and to avoid a multiplicity of proceedings. Further, Rule 1.3(1) allows the Court to give any relief described in the Judicature Act or the Rules. Rule 1.3(2) specifically states that the Court may grant a remedy whether or not it is sought in an Action. Justice Michalyshyn ultimately agreed with the Plaintiffs that the reach of s.8 of the Judicature Act “stops short of affecting legislated rules” and therefore Rule 3.56(1) effectively disallowed a Judicature Act remedy in this case.

His Lordship held that the parties were essentially engaged in estate litigation. As a result, the Surrogate Rules Alta Reg 130/1995 also applied. The Surrogate Rules, at s.2, preserves the Court’s discretion to vary any Rule where appropriate, and where it would serve the ends of justice. His Lordship held that the Summary Judgment Applications in this case should have been brought under the Surrogate Rules, and observed that Rule 3.56(1) applies specifically to Court Actions, Actions commenced by way of a Statement of Claim, and Counterclaims. As a result of the broad applicability of the Surrogate Rules, it was unnecessary to apply a specific provision of the Rules of Court, such as Rule 3.56(1). Therefore, the new party could be added as a Counter-Claimant.

The Plaintiffs argued further that the Counterclaims were barred by the Limitation Act, RSA 200 c L-11. The Plaintiffs did not raise this argument until their written submissions before the Court and the Defendants argued that the Plaintiffs violated Rule 13.6(3)(q). Michalyshyn J. stated that that the Counterclaims were necessary and desirable in this case, and allowed the Counterclaims to stand.

Finally, Justice Michalyshyn considered the merits of the Defendants’ Summary Judgment Application and held that there was insufficient evidence before the Court to find for the Defendants. The Defendants’ Summary Judgment Application was accordingly dismissed.