ELKOW v SANA, 2016 ABQB 235


6.37: Notice to admit
7.3: Summary Judgment (Application and decision)

Case Summary

One of the Defendants in a defamation Action, Ms. Sana, applied to settle the terms of a Judgment following a Summary Judgment Application. Graesser J. had granted Summary Judgment of some of the Plaintiff’s claims, and had issued a supplemental Decision with respect to damages. Ms. Sana objected to the supplemental Decision, arguing that an assessment of damages should not have been removed. Ms. Sana also argued that the formal Judgment should clarify that the claims for which Summary Judgment were not granted should be expressly dismissed. Graesser J. stated that, generally speaking, a Plaintiff who applies for Summary Judgment and fails is not at risk of their Action being dismissed. Similarly, a Defendant who brings a Summary Dismissal Application and fails will not, as a result, have Judgment entered against them. Graesser J. therefore declined to expressly dismiss those claims which remained extant after Summary Judgment.

The Plaintiff had argued that there was a deemed admission of liability by Ms. Sana because a Reply to Notice to Admit Facts contained only a bare denial of the facts which the Plaintiff argued was not made in accordance with Rule 6.37(3)(a). The Plaintiff argued that the Rule requires that a denial to a Notice to Admit Facts “set out in detail the reasons why the fact cannot be admitted”. Justice Graesser considered this a technical but fair argument. However, His Lordship held that it was inappropriate to determine issues of defamation and malice on the basis of a deemed admission which resulted from “imperfect compliance” with the Rules relating to Notices to Admit.

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