The Defendants were the Plaintiff’s former counsel in an Action involving deficiencies in a warehouse (“Underlying Action”). The Underlying Action was struck because the Plaintiff had sued in the Court of Queen’s Bench instead of arbitrating the dispute. By the time the Plaintiff were advised that they had brought the Underlying Action in the wrong forum, the Action was limitations barred.

The Plaintiff had changed counsel during the course of the Action. The first counsel commenced the Underlying Dispute by Statement of Claim on behalf of the Plaintiff, and second counsel continued the Action until it was ultimately struck by the Court of Appeal and that Decision was affirmed by the Supreme Court of Canada. The second counsel did not discover the fatal flaw in the Underlying Dispute until several years after assuming conduct of the file. The Plaintiff subsequently commenced an Action against both of their former counsel in negligence. The Defendants sought Summary Dismissal of the Plaintiff’s negligence claims against them and the Plaintiff cross applied for declarations that the Defendants’ conduct of the Underlying Dispute was negligent.

Master Robertson noted that under Rule 7.3 Summary Judgment is appropriate where there is no genuine issue requiring a Trial, which will be the case where the process allows the Court to make the necessary findings of fact, apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. Master Robertson confirmed that the parties must put their best foot forward, and where the facts are not entirely clear, the Court is to assume the truth of the Respondent’s evidence. Rule 13.18 allows the Respondent to rely on hearsay regarding what evidence is expected to be tendered at Trial. Master Robertson also noted that the Applicant in an Application for Judgment under Rule 7.2 may rely on admissions.

Master Robertson noted that Rule 13.6(3)(q) requires that a party expressly plead a limitations defence under the Limitations Act, RSA 2000, c L-12, and the Rules expressly require that a party plead that the proceedings should be stayed pursuant to the Arbitration Act, RSA 2000, c A-43. Based on the timing of the discovery of the flaw in the Underlying Dispute, Master Robertson granted the first counsel’s Application for Summary Dismissal. Master Robertson held that expert evidence was required to assess the negligence Claim against second counsel. Neither party advanced such expert evidence on the Summary Judgment Application. Therefore, the second counsel’s Application for Summary Dismissal was dismissed, as was the Plaintiff’s Cross Application for declarations on liability.