LOZINIK v SUTHERLAND, 2012 ABQB 440
7.3: Summary Judgment (Application and decision)
This Action arose from a failed attempt on Lozinik’s part to elicit financial commitment from the Defendants in the development and introduction of technology which Lozinik claimed to have developed. Lozinik brought a Special Chambers Application seeking, amongst other things, a Summary Judgment and the Defendants filed a Cross-Application seeking, amongst other things, a Summary Dismissal.
Jones J. first considered the objectives of Rule 7.3 and referenced several excerpts from volume 1 of the Stevenson & Côté Alberta Civil Procedure Handbook, 2011,(Edmonton: Juriliber, 2011) to clarify factors the Court should consider with respect to an Application for Summary Judgment or Summary Dismissal:
· Summary Judgment cannot be given if there are difficult or intricate legal issues, or if the evidence conflicts.
· The Affidavit for the Motion must make out a prima facie case with no holes in it, though the Chambers Judge can draw reasonable inferences.
· The entire basis for Summary Judgment cannot be inadmissible hearsay.
· If the opposing Affidavits clash on relevant facts, the Master or Chambers Judge can rarely prefer one over the other. One must look at the facts deposed to by the Party opposing Summary Judgment, and see if the law permits Summary Judgment on those facts.
· The Defence (or the Cause of Action, if the Defendant moves for Summary Judgment) need only be arguable to resist Summary Judgment. The Defence (or Claim, if the Defendant moves) need not be certain, and need not even have a 50% chance of success. A reasonable doubt on a legally relevant point is enough to prevent Summary Judgment…Where the Defendant moves for Summary Judgment, he or she has an initial evidentiary burden, but then the Plaintiff must show that his suit has a real chance of success. The test of "plain and obvious" is the proper test for Summary Judgment in favour of a Defendant.
· Summary Judgment cannot be given if there is an opposing Affidavit which disagrees on a necessary factual question.
· Material factual issues cannot be decided on a Motion for Summary Judgment or Dismissal.
Jones J. stated that the test for Summary Judgment under Rule 7.3 is the same as under the former Rules. In assessing Lozinik’s request for Summary Judgment, Jones J. had to assume that the facts deposed to by the Defendants were correct and then, in accordance with Rule 7.3(1)(a), determine if there was a defence to Lozinik’s claim or to any part of it.
The opposite was held to apply for an Application for Summary Dismissal. Jones J. had to assume that facts deposed to by Lozinik were correct and based on that assumption, determine whether there was merit to Lozinik’s claim or any part of it, in accordance with Rule 7.3(1)(b).
After individually considering each possible Cause of Action Lozinik brought against the Defendants, Jones J. held that, assuming the assertions set out in the Defendants’ Affidavits were true, there would be a defence to each of the asserted Causes of Actions. Based on this, the request for Summary Judgment was dismissed.
Next the Applications for Summary Dismissal were considered in turn, and Jones J. found in each case that even if Lozinik’s evidence was accepted, a triable issue or a Cause of Action could not be identified for all but those founded on breach of covenant as against one of the Defendants. Substantially all of Lozinik’s actions against the Defendants were dismissed and Jones J. advised Lozinik not to infer from the fact that not all of the actions were dismissed, that the Court believed he had a reasonable chance of success.View CanLII Details