Topolniski J

7.3: Summary Judgment (Application and decision)

Case Summary

In an Action which arose from two fires that occurred 16 days apart from one another, the Third Party Defendants sought Summary Dismissal of the Claim and Third Party Notices issued against them. The first fire started from a truck that was parked in a freshly-harvested area of a field; it was extinguished by fire fighters. High winds caused the second fire to erupt from remnants of the first fire. The second fire travelled to an adjacent farm and caused significant property damage.

Justice Topolniski noted that Rule 7.3 permits a party to apply for Summary Judgment on all or part of a claim where there is no merit to a claim or part of it, or the only real issue is quantum. Topolniski J. noted the cultural shift mandated by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 (CanLII), and Alberta Court of Appeal in Windsor v Canada Pacific Railway Ltd, 2014 ABCA 108 (CanLII), Topolniski J. stated that there are three criteria which must be met pursuant to Rule 7.3 so that Summary Judgment may be ordered: the Summary Judgment Application must: (i) allows the Judge to make the necessary findings of fact; (ii) allows the Judge to apply the law to the facts; and (iii) be a proportionate, more expeditious and less expensive means to achieve a just result. Rule 7.3(2) provides that the Application must be supported by an Affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

All Claims against the Defendant Dale Squair were unmeritorious and dismissed, and all Claims against the Defendant Durwin Squair concerning alleged negligence for failing to monitor the first fire were dismissed. The balance of the issues could not be decided by a summary proceeding and so had to proceed to Trial.

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