3.31: Statement of defence
3.57: Contents of counterclaim
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff by Counterclaim sought to amend their Counterclaim to add an additional Defendant by Counterclaim. The proposed Defendant by Counterclaim brought an Application to summarily dismiss the Action against it on the basis that the Action was barred pursuant to the provisions of the Limitations Act, RSA 2000, c L-12. The Court observed that the Defendant by Counterclaim’s submissions for Summary Judgment relied on Rule 7.3 and the recent approach to Summary Judgment set out by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 (CanLII):

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Sulyma J. noted that Rule 3.57(c) requires a Counterclaim be filed and served within the same time limit set out for a Statement of Defence under Rule 3.31(3). Therefore, the 20 days for filing and service under Rule 3.31(3)(a) was added to the two year limitation period. The Plaintiff by Counterclaim did not provide notice of the Claim within the limitation period. Summary Judgment was granted, and the Action against the proposed Defendant by Counterclaim was dismissed.

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