DINGWALL v FOSTER, 2012 ABQB 476
7.3: Summary Judgment (Application and decision)
The Plaintiffs sought Summary Judgment in their Action to enforce a Nevada Judgment. Burrows J. indicated that the bar on an Application for Summary Judgment is high, and that it must be plain and obvious that a defence or Action cannot succeed, is bound to fail, or has no prospect of success.
With respect to one of the Respondents’ defences, being that the Nevada Judgment had been obtained by fraud, the Respondents had invited the Court to speculate on evidence that might be adduced if the matter were to go to Trial. In response to this, Burrows J. referred to a Supreme Court of Canada decision, Papaschase Indian Band No 136 v Canada (Attorney General), 2008 SCC 14:
In the Court of Appeal and here, the case for the plaintiffs was put forward, not only on the basis of evidence actually adduced on the summary judgment motion, but on suggestions of evidence that might be adduced, or amendments that might be made, if the matter were to go to trial. A summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale for the rule. A motion for summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. …
Burrows J. pointed out that, according to Papaschase, each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried.
The Court determined that the Nevada Judgment was final, for a fixed amount, and had no penal or quasi-criminal character, such factors being the prerequisites for the enforcement of a foreign Judgment in Alberta. His Lordship concluded that it was plain and obvious that none of the Respondents’ defences (relating to natural justice, fraud, and public policy) would succeed.View CanLII Details