INFANTE v DZOGOV, 2016 ABQB 41
6.14: Appeal from master’s judgment or order
6.3: Applications generally
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
The Plaintiffs appealed a Decision by a Master in which one of the Defendants, a lawyer, successfully obtained Summary Dismissal of the Claim against him. The Plaintiffs argued that the Defendants had brought their Summary Dismissal Application under Rule 7.3 but that the Application was in fact argued based on Rule 7.2. The Plaintiffs contended that Rule 6.3(2)(b) required that the moving party state the grounds for their Application, and that the grounds stated in this Notice of Application were different than those actually argued.
With respect to the test for Summary Judgment, Justice Kenny noted that Summary Judgment can be granted if a disposition that is fair and just to both parties can be made on the existing record and if, in light of what that fair and just process reveals, there is no merit to the Claim. In order for the non-moving party's case to have factual merit, there must be a genuine issue of a potentially decisive material fact in the case. Kenny J. noted that the Court should first ask whether there is any issue of merit that genuinely requires a Trial or, conversely, whether the claim or defence is so compelling that the likelihood that it will succeed is very high such that it should be determined summarily. The second consideration is whether an examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties.
After reviewing the facts and the issues on appeal, Kenny J. held that the Plaintiffs had shown that their case presented a genuine issue requiring a Trial. As such, the Master’s Decision was reversed.View CanLII Details