1.2: Purpose and intention of these rules
3.65: Permission of Court to amendment before or after close of pleadings
7.3: Summary Judgment (Application and decision)

Case Summary

Following the Plaintiff’s employment dismissal, the Plaintiff filed a caveat on the Defendant’s condominium as security for the repayment of monies loaned by the Plaintiff to the Defendant. The Plaintiff alleged that the advance of funds to the Defendant was a loan repayable with interest. The Defendant defended the Claim stating that the funds were a gift, and also put forward defences based on the Statute of Frauds, 29 Car II C 3 [1676] and the Limitations Act, RSA 2000, c L-12. The Defendant applied to discharge the caveat and to summarily dismiss the Claim against her. The Plaintiff resisted the Application and cross-applied to allow an Amendment to its Pleadings.

The Court noted Rule 3.65 provides that prior to or after the close of Pleadings, the Court may give permission to amend a Pleading, and that Rule 1.2(a) informs that discretion. The Court also noted the “classic rule” is that a Pleading may be amended, no matter how careless or late. This is subject to four major exceptions: 1) if the amendments cause injustice or prejudice not compensable in costs; 2) if they are hopeless; 3) if a limitation has been missed; or 4) if “there is an element of bad faith associated with the failure to plead the amendments in the first place”. Master Mason, upon a review of the facts, determined that none of the exceptions applied. Accordingly, the Amendments to the Pleadings were permitted.

With regard to the Summary Dismissal Application, the Court noted that Rule 7.3(1)(a) permits a party to apply to the Court for Summary Judgment in respect of all or part of a Claim on the ground that there is no “merit” to a Claim or part of it. Master Mason cited Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 for the proposition that Rule 7.3 calls for a holistic analysis of whether a Claim has merit, and noted the longstanding approach that interlocutory decisions which can resolve a dispute in whole or in part should be made when the record permits a fair and just adjudication. Master Mason stated that a party responding to a Summary Judgment Application must put its best foot forward, and present evidence to show sufficient “merit” to establish a genuine issue requiring a Trial with respect to the outstanding issues. Master Mason further noted that the Court is not to weigh competing evidence or assess credibility in order to summarily determine an Action.

After reviewing the facts of this case, Master Mason determined that there were conflicts in the evidence on all of the matters at issue, and credibility would be an important factor. In the result, the Applications to discharge the caveat and for Summary Judgment were dismissed.

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