The Plaintiff commenced a medical malpractice Action against four individual treating physicians and Alberta Health Services acting as the Tom Baker Cancer Centre (“TBCC”). All of the Defendants applied for Summary Dismissal of the Action under Rule 7.3. The Master who heard the Summary Dismissal Application granted the Application as against three of the physicians,  partially granted the Dismissal Application by the fourth physician, and denied the Summary Dismissal Application by the TBCC. The Plaintiff, and the Defendants who were denied Summary Dismissal, each appealed part of the Master’s Decision.

Campbell J. stated that an Appeal of a Master’s Decision is an Appeal de novo, where no deference is owed to the Master. Further, Rule 6.14(3) provides the Court with broad authority to admit new evidence on an Appeal. The test for relevance and materiality to admit new evidence under Rule 6.14(3) is a “very lax” one.

The Court further stated that, pursuant to Rule 7.3, a party may apply for Summary Judgment if it can establish that there is no merit to a claim or part of it. Justice Campbell held that the relevant question is whether there is a “genuine issue of merit requiring a trial and not merely that the evidence discloses a triable issue.” An Applicant is no longer required to demonstrate that it is “plain and obvious or beyond doubt” that there is no genuine issue of material fact requiring Trial. The evidentiary burden to establish that there is no genuine issue of merit for Trial rests with the Applicant. Once this is established, the burden shifts to the Respondent to adduce evidence to establish that there remains a genuine issue of merit for Trial. Both parties must put their best evidence forward, instead of relying on speculation that better evidence might be available at Trial.

The TBCC provided new evidence in support of its Appeal. Justice Campbell held that the evidence in this case met the low threshold of being relevant and material. Based on the new evidence, the Court summarily dismissed the Plaintiff’s Action against the TBCC. Her Ladyship also held that the Plaintiff had failed to provide sufficient evidence to support the claim, and the Master did not err in granting Summary Judgment in favour of the Defendant physicians. There was no evidence to suggest a genuine issue of merit for Trial.