Feehan j

7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff landlord applied for Summary Judgment in respect of its claim for unpaid rent against the Defendant tenant, as well as Summary Dismissal of the claims against it in the Defendant’s Counterclaim, both pursuant to Rule 7.3. The Defendant opposed the Applications.

Justice Feehan first explained that Rule 7.3(1) allows a party to apply for summary disposition if there is no defence or merit to a claim or part of a claim, or where the only real issue is the amount to be awarded. Additionally, pursuant to Rule 7.3(3), the Court may dismiss or grant Judgment with respect to a claim or part of a claim, determine the amount to be awarded, or refer part of a claim to Trial or determination by a referee.

His Lordship noted that a five-member panel of the Court of Appeal recently reviewed the law of Summary Judgment in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (“Weir-Jones”). Justice Feehan explained that the Weir-Jones case confirms the importance of summary disposition as “a proportionate, more expeditious and less expensive means to achieve a just result”, which is appropriate where a motions Judge is able to make determinations on the merits based on the record before it. As the Court held in Weir-Jones, a case is ideally suited for summary disposition where facts are “not seriously in dispute and the real question is how the law applies to the facts”. That being said, Courts are also able to go slightly further in hearing matters summarily by making findings from the record and drawing necessary inferences. If a fact has no impact on the outcome of the case, then the fact that it may be disputed will not impact the Court’s ability to make a summary determination.

Justice Feehan also emphasized that, as explained by the Court of Appeal in Weir-Jones, both parties must “put their best foot forward” at a summary disposition Application. The Court should ask whether it is possible to fairly resolve the dispute summarily, and determine whether the moving party has met its burden to show that there is no genuine issue requiring Trial. At a threshold level, “the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for summary adjudication”. The presiding Judge must “be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute”.

In this case, the record was fulsome, and Justice Feehan was not concerned that determining the issues on a summary basis would cause substantive or procedural injustice to the parties. The facts were not seriously in dispute and therefore the case was “ideally suited for summary disposition”. His Lordship determined that the Defendant had breached its lease and was owed damages, but also held that the Defendant was entitled to a set-off against some of the Plaintiff’s damages for “inconveniences and defaults” by the Plaintiff, to be determined by agreement between the parties, or if they could not agree, by the Court or a referee.

Costs were awarded to the Plaintiff in accordance with Schedule “C”, but Justice Feehan also held that “[C]osts with respect to set-off are reserved until determination of set-off”.

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