3.65: Permission of Court to amendment before or after close of pleadings
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Appellant/Plaintiff appealed the Chambers Judge’s Judgment which had summarily dismissed the Appellant’s claim pursuant to Rule 7.3. The claim itself spanned Actions dating from 1996 to 2018. The Appellant contended that the Respondent’s Affidavit was insufficient and improper basis on which to grant Summary Judgment, and that the Chambers Judge erred by relying on it. Specifically, the Appellant asserted that the Affidavit on which the Respondent relied was not made on the basis of personal knowledge in contravention of Rule 13.18(3). The Appellant characterized the Respondent’s affiant as a “straw witness”, as they were not personally involved in the facts or matters which formed the basis of the claim.

The majority of the Court noted that “[t]he problems of ‘straw witnesses’ … in [the Respondent’s] evidence are precisely those that the ultimate 10-year limitation period is intended to overcome”, and that the evidentiary issues faced by the Respondent were caused by the amount of time which had elapsed from the time the causes of action arose and the litigation. Further, the majority noted that most of the Chambers Judge’s determinations were based on the pleadings, documentary evidence, or undisputed material facts. As a result, that ground of appeal was dismissed.

The Appellant also argued that the Chambers Judge erred by dismissing the Appellant’s Action while permitting it to apply to amend the Statement of Claim. The Appellant did not plead the breach of two particular agreements, which, during oral argument, the Appellant’s counsel argued had been breached, and argued that they must survive Summary Dismissal. The Appellant did not apply to amend its pleadings until six months after the Chambers Judge’s Reasons for Judgment were issued. The Appellant argued that if “a pleading is summarily dismissed that could have been saved by an amendment, the [C]ourt must consider the amendment first”. The majority of the Court held that this principle only applied where the amendment Application is brought concurrently with an Application to strike or dismiss a claim. This principle did not extend to “an ad hoc request to amend pleadings to cure a fatal defect that becomes apparent in closing argument”. This ground of appeal was dismissed.

Considering the merits of the Appellant’s claim, the majority noted that “the litmus test of summary judgment is whether, given the competing claims, there can be a ‘fair and just determination on the merits’” which occurs where there is “no merit to a claim or part of it”. The majority re-affirmed that “merit” means “proof on the balance of probabilities”: Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (CanLII). The majority held that while the Respondent bore the legal burden on the Summary Dismissal Application, the Appellant bore an evidential burden to prevent the Respondent from establishing that there is no triable issue, and that they were obligated to put their best foot forward in doing so. The majority found that the Appellant had relied primarily on the pleadings and speculation about what might be proven at Trial, and that the record did not disclose palpable or overriding error on the part of the Chambers Judge in finding that there was no evidentiary basis for suspicion, and no merit to the Claim more broadly. The Appeal was dismissed in its entirety.

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