ELLMAR DEVELOPMENTS LTD v BEARSPAW DEVELOPMENT INC, 2016 ABQB 221
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
The Plaintiff applied for Summary Judgment against the Defendants, and the Defendants cross-applied for the claims against them to be struck or, in the alternative, Summary Dismissal. Master Hanebury considered whether Summary Judgment could be granted when there was conflicting evidence between the parties. Master Hanebury noted that Summary Judgment could not be denied solely on the basis that the evidence disclosed a triable issue, but rather when there was an issue of merit that genuinely required a Trial. Additionally, issues of credibility could generally not be determined summarily. Master Hanebury concluded that:
…conflicting evidence on a material matter usually results in a trial unless one side’s evidence is completely non-credible, i.e. it is destroyed either by other evidence or on cross-examination, or is found to be bald, self-serving and unsupported.
In this case, Master Hanebury held that neither party’s evidence was sufficiently bolstered or destroyed to the degree necessary to grant Summary Judgment; therefore, a Trial was required.
Regarding the Defendants’ Application to strike the claims against them, Master Hanebury noted that an Application under Rule 3.68(2)(b) to strike a claim on the basis that it disclosed no reasonable cause of action must be made without evidence. The Court assumed that the allegations of fact found in the Claim were true. Master Hanebury held that the claim disclosed a cause of action against both Defendants; therefore, the Defendants’ Applications to Strike were dismissed. Additionally, as neither Defendant filed evidence in support of their Cross-Applications for Summary Dismissal, the Court dismissed both Applications stating that, if they were to succeed, it would set an “unacceptable precedent”.View CanLII Details