One of the Defendants sought Summary Dismissal of the Plaintiffs’ Action pursuant to Rule 7.3.

Malik J. cited Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 and Hannam v Medicine Hat School District No. 76, 2020 ABCA 343 for the proposition that Summary Judgment is appropriate when there is no genuine issue requiring Trial, such as where the record allows the Court to make the necessary findings of fact, apply the law to those facts, and arrive at a just result in an expeditious way.

Malik J. further commented that while a Court is not precluded from granting Summary Judgment in the face of contested facts or conflicting evidence, it should not be granted if there is a genuine issue requiring Trial such as where there is a dispute on material facts or there are questions of credibility or evidentiary gaps. On an Application for Summary Judgment, the parties must put its best foot forward. The focus is on the evidentiary record available to the Judge rather than on speculation about what might “turn up in the future” or whether a party can produce a “better” record should the matter proceed to Trial.

In determining whether to grant the Defendant’s Application, Malik J. considered the following questions: (a) Is it possible to fairly resolve this dispute on a summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a Trial; (b) Has the moving party met the burden to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a Trial; (c) Have the Plaintiffs demonstrated there is a genuine issue that requires a Trial; and (d) Does the state of the evidentiary record give rise to sufficient confidence that summary disposition is appropriate in the circumstances.

Having found that there were credibility issues that require a Trial and that the Defendant failed to show that there was no merit to the claim, Malik J. held that the Plaintiffs’ Action should not be summarily dismissed. Malik J. further commented that while a Trial might not yield a more complete documentary record, having the parties testify at Trial would produce a more complete evidentiary record from which to make a fair and just Decision. As such, the Defendant’s Application was dismissed.