DINGWALL v DORNAN, 2014 ABCA 89
BERGER, WATSON and ROWBOTHAM JJA
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
The Plaintiff Respondents obtained judgment in Nevada against the Defendant Appellant and commenced proceedings to enforce the Judgment in Alberta. The Alberta Court granted the Plaintiff Respondents’ Application for Summary Judgment on the basis that there was insufficient evidence to show that the Nevada Judgment was obtained wrongly, and therefore there was no genuine issue for Trial. The Defendant Appellant appealed.
The Court of Appeal noted that a foreign Judgment is evidence of a debt, and in order to be enforceable in Alberta the foreign Judgment must: have been issued by a Court of competent Jurisdiction; be final and conclusive; and be for a fixed sum. The Court stated that the test for Summary Judgment under Rule 7.3 was well articulated in prior case law: once the Applicant has shown that no genuine issue of fact requires a Trial, the onus shifts to the Respondent to show that the claim has a real chance of success and that there is an arguable defence to the claim. The Court further observed that Rule 7.3(1) enables a Party to apply for Summary Judgment on many different grounds, one of which is that there is no defence to a claim. In addition, Rule 7.3(2) provides that the Application must be supported by an Affidavit or by other evidence stating that the grounds for Summary Judgment have been met. The Court noted that one of the Plaintiff Respondents swore an Affidavit in support of the Summary Judgment Application which was supported by numerous exhibits detailing the trajectory of the Nevada Action. The Defendant Appellant claimed that, because the second Plaintiff Respondent did not file an Affidavit, the Application for Summary Judgment should have failed based on Rule 7.3(2) and 13.18(3).
The Court stated that Rule 13.18(3) allowed that an Affidavit was not strictly required in support of an Application:
…The plain reading of the rule does not mandate an affidavit based on personal knowledge. Rather, it says if an Affidavit is used, it must be on the basis of personal knowledge. Moreover, Rule 7.3(2) does not restrict the evidence on a summary judgment application to affidavit. It allows the application to be based upon “other evidence to the effect that the grounds have been met”. …
The Court stated that given the Rule’s ordinary meaning, there was no requirement for an Affidavit to be filed separately by the second Plaintiff Respondent. The Defendant Appellant argued further that there had been service irregularities in the Nevada Action which caused the Court to err in giving judgment in favour of the Plaintiff Respondents. The Alberta Court of Appeal confirmed that Rules 7.3(2) and 13.18(3) did not mandate an Affidavit of Service from the Plaintiff Respondents’ counsel; all that was required was for Dingwall to depose that there was a Judgment which was final and conclusive, for a fixed sum and that he genuinely believed that there was no defence to the claim. It was not required that he swear to knowledge of every anticipated defence. In the result, the Court dismissed the Appeal, stating that the Chambers Justice had not erred. The Nevada Judgment was enforceable in Alberta.View CanLII Details