5.34: Service of expert’s report
5.37: Questioning experts before trial
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff, Hache, sued the Defendant, West Edmonton Mall, in negligence and occupiers’ liability. The Defendant unsuccessfully applied for Summary Dismissal before a Master, and appealed the Master’s Decision.

Burns J. considered the evidentiary record and specifically addressed the Defendant’s contention before the Master that an expert report tendered by the Plaintiff should not have been admitted as it had not been filed in the form of an Affidavit allowing the report to be tested through Questioning. Burns J. noted that the report had been filed in the proper Form 25 providing the information required by Rule 5.34, and that Rule 5.37 allows for Questioning on an expert report. Therefore, the fact that the report was not filed in the form of an Affidavit did not preclude the Defendant from Questioning the expert.

Justice Burns considered the test for Summary Judgment noting that Summary Judgment is appropriate where the process a) allows the Court to make the necessary findings of fact, b) allows the Court to apply the law to the facts, and c) is proportionate, more expeditious and less expensive means to achieve a just result. Burns J. clarified that the parties to a Summary Judgment Application are required to be their “best foot forward” meaning gaps in the record do not necessarily prevent Summary Judgment.

Burns J. held that Summary Judgment was appropriate in this case as there were no material facts in dispute, no issues of credibility, and Burns J. was satisfied that the Court could apply the law to the facts. The Appeal from the Master’s decision was allowed and the Action was dismissed.

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