MILAVSKY v MILAVSKY, 2015 ABQB 395
6.11: Evidence at application hearings
6.6: Response and reply to application
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
The Plaintiff commenced a divorce and matrimonial property Action, and subsequently filed a separate Action for unjust enrichment seeking the imposition of a constructive trust, alleging that the Defendants had conveyed the matrimonial residence to a trust in 1992 for the purpose of defeating any claims that arose from the matrimonial relationship between the Plaintiff and her former spouse. The Defendants applied for Summary Dismissal of the Plaintiff’s claims.
Justice Mahoney noted that Rule 7.3(1)(b) allows Defendants to apply for Summary Dismissal if there is no merit to a claim or part of it. In Hryniak v Mauldin, 2014 SCC 7 (CanLII), the Supreme Court of Canada revised the test for Summary Judgment from whether the case presents “a genuine issue for trial” to whether there is “a genuine issue requiring a trial”. The Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 (CanLII), held that there will be no genuine issue requiring a Trial when the Judge is able to reach a fair and just determination on the merits on a motion for Summary Judgment. This will be the case when the process: 1) allows the Judge to make the necessary findings of fact; 2) allows the Judge to apply the law to the facts; and 3) it is a proportionate, more expeditious and less expensive means to achieve a just result. Justice Mahoney observed that the Court must therefore determine if there is any issue of merit that genuinely requires a Trial, or if a disposition that is fair and just to both parties can be made based on the Court’s consideration of the existing record. On a Summary Judgment Application, the parties are required to put their best case forward. The Court is to presume that the evidence that has been presented is the best evidence the parties can “muster”.
The Defendants argued that the Plaintiff’s earlier filed Affidavits were inadmissible as evidence on the Summary Judgment Motion because she did not indicate that she would be relying on them. Justice Mahoney reviewed Rules 6.6(1) and (3), and Rule 6.11(1) and stated that, while Applicants for Summary Judgment must satisfy the requirements in Rule 7.2, 7.3 and 13.18(1), the Rules are silent as to the obligation of Respondents. Justice Mahoney noted that the purpose of the procedural Rules is to provide a means by which Claims can be resolved in a timely and cost-effective way. Justice Mahoney held that the previous Affidavits were admissible because the Defendants were well aware of their existence and their contents. Further, the Defendants had a Case Management Judge to whom they could complain.
Justice Mahoney commented that concerns about the number of witnesses, the volume of material and the complexity of the legal issues should not regularly be used to thwart an effective mechanism for the early disposal of cases that lack genuine issues requiring a Trial. Justice Mahoney held, however, that this was not a suitable case for Summary Judgment, because the evidence showed that material facts and the credibility of key witnesses were in serious dispute. Further, there were genuine issues of law which could only be answered in the context of a Trial. Accordingly, the Application for Summary Dismissal was denied.View CanLII Details