KULAGA v FIRST NATIONAL FINANCIAL GP CORPORATION, 2014 ABQB 400
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
The Plaintiff, a straw buyer in a real estate transaction, commenced an Action against, inter alia, his lawyer. The Plaintiff had agreed to arrange financing and buy a house for an unknown third party. When the third party failed to make the payments on the home the bank pursued the Plaintiff for payment of the mortgage. The Defendant lawyer sought Summary Dismissal of the Action before a Master, arguing that the Plaintiff could not seek indemnity or contribution due the common law doctrine of ex turpi causa non oritur actio. The Master declined to summarily dismiss the Plaintiff’s Claim against the Defendant lawyer; the Defendant lawyer appealed. Justice McCarthy stated that the standard of review on an Appeal from a Master to a Justice is correctness. In addition, an Appeal from a Master’s Decision is a hearing de novo pursuant to Rule 6.14.
McCarthy J. stated that the test for Summary Judgment under Rule 7.3 accorded with recent Supreme Court of Canada and Alberta Court of Appeal decisions. His Lordship agreed that the modern test for Summary Judgment is to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record. McCarthy J. observed that the Alberta Court of Appeal made it clear that it must be determined whether there is any issue of merit that requires Trial. Further, an issue of law may be appropriate for Summary Judgment, but the determination of facts often requires Trial. In the case at bar, the proper disposition of the Defendant’s Application for Summary Judgment required an examination of whether a fair and just decision could be made from the record. His Lordship found that the Master’s analysis was correct: further evidence was needed with respect to the purchase contract, the property transaction and the Defendant lawyer’s knowledge about the fraudulent nature of the transaction. Justice McCarthy dismissed the Appeal, holding that the factual discrepancies and questions of credibility were beyond the scope of a Summary Judgment Application.View CanLII Details