E DEHR DELIVERY LTD v DEHR, 2018 ABQB 846
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
The Applicant appealed a Master’s Decision dismissing its Summary Judgment Application. The Applicant had applied for Summary Judgment seeking a declaration that it was the owner of two trucks free and clear of any encumbrance claimed by the Plaintiff. The Applicant had entered into a Purchase and Sale Agreement for the trucks dated March 25, 2014. At that time, the Plaintiff had a security interest in the trucks registered at the Personal Property Registry. The vendor of the trucks discharged those registrations on March 28, 2014, and the Applicant paid the balance of the purchase price under the Purchase and Sale Agreement to the vendor on March 29, 2014. The Master found that the acquisition of the trucks occurred on March 25, 2014, being the date of the Purchase and Sale Agreement, and that the transfer of title was therefore subject to the registered security interest of the Plaintiff.
The Applicant appealed and in doing so filed a new Affidavit under Rule 6.14(3) deposing to the intention of the parties which was stated to be that ownership of the trucks would not pass to the Applicant until the purchase price was paid in full, which did not occur until March 29, 2014.
Justice Shelley noted that Appeals from Master’s Decisions are on the basis of correctness on all issues, and that the Appeal is on the record, but may also be based on evidence which is relevant and material in the opinion of the Judge hearing the Appeal. Justice Shelley found that the new Affidavit was provided in connection with the Appeal as “an attempt to plug up the holes in the evidence that the appellant had chosen to put before the Master” and that it was entirely self-serving. Justice Shelley held that the Court was not bound to accept the Applicant’s new evidence on the basis that it was not only self-serving, but that the evidence remained ambiguous with respect to the intention of the parties given the surrounding circumstances and the balance of the other evidence. Justice Shelley held that on the basis of the ambiguous evidence concerning the conduct and intention of the parties, the matter ought to proceed to Trial to assess the credibility of the various parties involved with the purchase and sale of the trucks at issue. The Appeal was therefore dismissed.View CanLII Details