Master Schlosser

3.2: How to start an action
7.1: Application to resolve particular questions or issues
7.3: Summary Judgment (Application and decision)

Case Summary

The Applicant, Municipal District of Opportunity No. 17, brought an Originating Application seeking the return of lands which had been conveyed to the Respondent, Gun-Shy Investments Inc., for development in accordance with a detailed contract between the parties (the “Agreement”).  The Agreement contained an option to repurchase in the event that the Respondent did not meet the contractual deadlines or conditions.  By the first anniversary of the Agreement, the Respondent had not completed any of the steps required under the Agreement, and the Applicant elected to rescind the Agreement and to exercise its option to repurchase.

The Respondent brought a Cross-Application under Rule 3.2(6) seeking a conversion of the Originating Application to an Action brought by Statement of Claim, arguing that there were facts in dispute which necessitated a Trial.  Master Schlosser noted that Courts are well able to deal with factual issues arising on an Originating Application. Master Schlosser commented that the Originating Application procedure is similar to a Summary Judgment Application, except that the standard of proof is higher on an Application for Summary Judgment. Master Schlosser observed that some Courts have put the standard for Summary Judgment Applications at 80%, whereas the threshold on an Originating Application is 51%. As such, an Originating Application is analogous to an Application under Rule 7.1.

On the facts before the Court, Master Schlosser determined that the Agreement had been breached and ordered that the Applicant was entitled to exercise its repurchase option.

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