The Plaintiffs were involved in the construction of an apartment building in Canmore (the “Project”). The commenced an Action against a construction company (“Cormode”), its personnel (the “Cormode Defendants”), and several subcontractors and consultants. The Plaintiffs alleged breach of contract, negligence, and deceit, asserting these issues caused significant delays and increased Project expenses. In 2022, the Action was consolidated with ten related Actions, and Justice Marion was appointed as the Case Management Justice.

This Application sought Summary Dismissal of the claims against the Cormode Defendants. Marion J. explained that, pursuant to Rule 7.3(1)(b), a claim may be summarily dismissed where it lacks merit and does not raise a genuine issue for Trial. Conversely, to avoid Summary Dismissal, a Respondent must prove a genuine issue for Trial exists. Ultimately, the presiding Judge must be convinced that Summary Dismissal is fair and appropriate based on the facts for an Application to be granted.

The Cormode Defendants contended that the claims lacked the specifics required under Rules 13.6 and 13.7. However, Marion J. noted that the Cormode Defendants did not request particulars under Rule 3.61, did not raise concerns about the lack of specifics in their Statement of Defence, and did not seek to strike the claim pursuant to Rule 3.68. While acknowledging that the Cormode Defendants actively engaged with the issue and provided sworn Affidavits denying any misrepresentation, Justice Marion concluded that the Plaintiffs failed to establish a genuine issue for Trial with respect to most of the alleged negligent misrepresentations.

Ultimately, the Court deemed Summary Dismissal inappropriate in the circumstances, except for a few distinct claims. Marion J. expressed concern about the unintended consequences of dismissing intertwined claims and noted that partial Summary Dismissal would not adequately address the main issues raised by the Cormode Defendants. Additionally, Justice Marion indicated that the Cormode Defendants’ concerns could be resolved through alternative measures, such as enhanced Costs for litigation misconduct pursuant to Rule 10.33. Marion J. advised the Parties to refine or eliminate non-meritorious claims and adjust their positions as the litigation progresses, in accordance with Rule 1.2.