MCKENZIE v SMITH, 2016 ABQB 114
1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
7.1: Application to resolve particular questions or issues
7.3: Summary Judgment (Application and decision)
The Plaintiffs commenced an Action against the Defendants for an undisclosed defect in a residential property which the Plaintiffs had purchased from the Defendants. The Plaintiffs then applied for Summary Judgment with respect to the Defendants’ liability.
Master Schulz noted that Summary Judgment can be granted if a fair and just disposition can be made on an existing record. Further, Summary Judgment is appropriate if there is no merit to the claim or defence.
Master Schulz considered Rule 7.1 and stated that the test as set out in Rule 7.1(a) and the leading authority is “a real likelihood that the net result will save time and money for all concerned”. Master Schulz held that there was no overlap between the issues of liability and damages. Further, there was a real likelihood that proceeding with Summary Judgment on liability would save time and costs; the criteria from Rule 7.1(a) were met. Master Schulz concluded that this was a fair and just process and there was no issue of merit regarding liability that required a Trial.
The Plaintiff also requested that the matter be sent to a Referee to assess damages; however, the Court was not satisfied that the damages issue was restricted to the amount only, as required by Rule 7.3(b). The assessment was not directed to a Referee. Instead, Master Schulz granted Summary Judgment on the issue of liability, and directed the parties to proceed to an assessment of damages.View CanLII Details