GIAMMARCO & CO (WESTERN) DIVISION LTD v TRL REAL ESTATE SYNDICATE (05) LTD, 2015 ABQB 587
7.3: Summary Judgment (Application and decision)
Three Defendants in an Action for breach of a real estate purchase agreement applied for Summary Judgment dismissing the Claim against them. The corporate Defendants were all limited partners in a partnership agreement, and all corporate entities were controlled by one individual, Mr. Swift. Master Mason referenced Rule 7.3(1)(b) which provides that a party may apply to the Court for Summary Judgment in respect of all or part of the Claim on the basis that there is no merit to the Claim. Master Mason also referenced Rule 7.3(2) which provides that the Application for Summary Judgment must be supported by an Affidavit swearing positively that the stated grounds have been met, or by other evidence to that effect.
Master Mason analyzed the relevant authorities and summarized that, in order to determine the liability of limited partners, the Court has to consider the nature of the business of the particular partnership, the actions taken by the limited partner, and the terms of the limited partnership in question. Master Mason concluded that each case must be determined on its own facts. Master Mason considered the evidence before the Court, including that of the general partner which provided that Mr. Swift was involved in the decision making process of the business and that he had taken part in decisions of significance in the transaction in issue.
Master Mason concluded that, because the evidence conflicted, it presented a credibility issue. The Court may not make findings of credibility or resolve contested issues of fact on a Summary Judgment Application. The Application for Summary Judgment was dismissed.View CanLII Details