ELKOW v SANA, 2015 ABQB 803


7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiff in a defamation Action applied for Summary Judgment. One of the two Defendants argued that this was not an appropriate case for Summary Judgment due to the large amount of time and money that had been invested into the Action, and because the Plaintiff was not seeking Summary Judgment against the second Defendant, this was not an efficient use of Summary Judgment. Graesser J. determined that Summary Judgment was the most efficient way to deal with the Action. Justice Graesser also confirmed that Summary Judgment is always available on individual claims against only one or some Defendants in an Action, and not all conflicts in Affidavit evidence preclude Summary Judgment.

His Lordship noted that, if the Court determines in a Summary Judgment Application that viva voce evidence is not required, the Court should engage in a six step analysis to determine whether the matter is suitable for summary determination:

1. The court is to presume that the best evidence from both sides is before the court.

2. As a corollary to number 1, the court is to ask whether a negative inference can be drawn from the absence of evidence on certain points.

3. Next, the court should look at the complete package and ask whether all of the evidence is admissible.

4. Next, the court should ask whether there is a conflict in the evidence and, if so, whether, (a) the conflict has been resolved on cross examination, or (b), whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported.

5. The next step is to examine the evidence.

6. Having performed that evidentiary exercise a plaintiff will be entitled to judgment if the plaintiff can prove all elements of the cause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence. A defendant will be entitled to judgment if the plaintiff cannot prove an essential element of its cause or if the defendant has a complete defence.

Graesser J. granted the Plaintiff’s Application for Summary Judgment and awarded nominal general damages, taking in to account the fact that the Plaintiff made no submissions on damages, and the Defendant had limited financial means.

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