The Plaintiff applied for Summary Judgment on its Claim and dismissal of the Counterclaim. The Claim was based on a Judgment granted in the state of Idaho for $122,551.17 USD, with interest thereafter at 5.25%. The Defendants had purchased a condo in Idaho and entered into a promissory note and deed of trust in favour of the Plaintiff to fund the purchase. The Plaintiffs could not pay the note when it expired, and could not pay the negotiated renewal balloon payment either. The condo was sold to the Plaintiff, and the Plaintiff received Summary Judgment, unopposed, against the Defendants for the deficiency. That Judgment became the subject of the Alberta Action.

Master Hanebury found that the Statement of Defense raised no genuine issue for Trial and granted Summary Judgment in favour of the Plaintiff. The remaining question was whether the Defendants’ Counterclaim raised any genuine issues for Trial, or whether it should be summarily dismissed. The Plaintiff argued that the Counterclaim was barred by res judicata, as the Claim could have been raised in the prior proceeding. Master Hanebury said it was unknown whether a claim based on the tort of intimidation, which was one of the claims made by the Defendants, properly belonged in the original lawsuit in Idaho, as the law there may be quite different. If the Claim did not properly belong there, then res judicata may not be applicable. Therefore, there was a genuine issue for Trial as to whether res judicata applied to bar the Claim in Alberta. Master Hanebury agreed with the Plaintiff that the Defendants’ evidence was poor, but noted that the Application was not made under Rule 3.68 to Strike the Claim, but for Summary Dismissal under Rules 7.2 and 7.3. In such circumstances, the plaintiff bears the legal onus of showing that there is no genuine issue for trial. Accordingly, the Counterclaim for damages based on the tort of intimidation was not dismissed.