Graesser J

7.2: Application for judgment
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff, Mr. Gaw, sued for breach of a construction contract. The Defendant, Yellowhead County, applied for Summary Dismissal of the Action, and the Plaintiff cross applied for Summary Judgment.

Graesser J. reviewed recent authorities relating to the test for Summary Judgment and Summary Dismissal under Rules 7.2 and 7.3, noting that the essential principles for Summary Dismissal were summarized as: a) the existing record must provide for a fair and just disposition for both parties; b) where there is no issue of a potentially decisive material fact, a claim has no merit, and Summary Dismissal can be granted; c) a central consideration is whether viva voce evidence is required to resolve an issue, or whether the Claim or Defence is so compelling that the likelihood of its success is very high; d) the mere assertion that further evidence will be adduced at Trial or at Questioning is insufficient to resist Summary Judgment or Summary Dismissal; and e) the Respondent must “put its best foot forward”.

Justice Graesser held that the record before the Court provided the information necessary to summarily determine the Action. Graesser J. applied the principles for Summary Judgment to the circumstances of the case and held that there was no breach of contract. The Defendant’s Application for Summary Dismissal was therefore granted and the Plaintiff’s Cross-Application for Summary Judgment was dismissed.

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