KWAN v SUPERFLY INC, 2011 ABQB 343
7.3: Summary Judgment (Application and decision)
The Defendants applied for Summary Judgment. Marceau J. referred to Manufacturers Life Insurance Company v Executive Centre at Manulife Place Inc, 2011 ABQB 189, as authority that Rule 7.3 operates in the same manner and follows the same legal principles as its precursor, “old” Rule 159. The Court then noted that “the general test for summary dismissal is that it must be ‘plain and obvious that the action cannot succeed’, the action is ‘bound to fail’ or the action has ‘no prospect of success.’” His Lordship proceeded to identify the relevant principles, as approved by the Court of Appeal in Murphy Oil Co v Predator Corp, 2006 ABCA 69, relating to the burden of proof required in a Rule 7.3 Application:
(a) A party bringing a Motion for Summary Judgment bears the legal onus of showing no genuine issue for Trial.
(b) There is no onus on the responding party to prove a genuine issue for Trial.
(c) If the Applicant for Summary Judgment discharges his/her onus on the material filed, a Respondent who does not resist the Application through admissible evidence risks Judgment against him/her. This is an evidentiary burden.
(d) There is no obligation on the Respondent to file material. He/she can accept the risk described above. If the Applicant fails to discharge his/her legal onus, the Application will fail.
(e) More commonly a Respondent will provide admissible evidence opposing the Motion. In that event, the Court will consider all of the evidence to determine whether the Applicant has shown that there is no genuine issue for Trial.
All but one of the issues in the Action against the Applicants were struck pursuant to Rule 7.3, on the basis of issue estoppel and for the absence of a factual foundation.View CanLII Details