Master Smart

7.3: Summary Judgment (Application and decision)
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Defendants applied to strike, or alternatively summarily dismiss, the Plaintiff, Morin’s, pleadings. Morin was the only Plaintiff remaining in the Action after other Plaintiffs’ Claims had been discontinued. The Defendant also sought enhanced Costs against Morin’s counsel personally, on the basis that he had acted without taking instructions from a number of the Plaintiffs.

Morin had previously entered into an agreement through which he had agreed to cooperate with the other parties to attempt to have the Action withdrawn, discontinued, dismissed or struck out, in exchange for consideration. After signing a Discontinuance of Claim, Morin backed out of the agreement, stating that he had been induced to sign it through intimidation and bribery while under duress, and that he had been lied to. He also said that he had been told not to show or tell his counsel about the agreement.

Master Smart noted that the proper circumstances for Summary Dismissal under Rule 7.3 were summarized in Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (CanLII). Master Smart then reviewed the evidence and held that although the Affidavits filed by the Parties contained conflicting facts, those matters were addressed on questioning and the conflicts were resolved. Where the conflicting matters were not resolved, the conflicting evidence was self-serving and unsupported. The evidence did not support Morin’s claim that he signed the agreement under duress, and similarly did not demonstrate that Morin had been lied to. As such, the Court found that it could make a fair and just determination under Rule 7.3, and dismissed Morin’s Claim. Master Smart did not comment on whether or not the Action could or should be struck.

In assessing Costs pursuant to Schedule C, Master Smart first explained that all nine of the original Plaintiffs’ Actions had been dismissed, and that Costs had been reserved pending the determination of Morin’s Claim. Master Smart first dealt with the Costs of the Application, and ordered that the Defendants have their Costs against Morin and his counsel jointly, because Morin’s counsel had not established that he had authority to act. Additionally, Morin’s counsel had not provided evidence or legitimate basis to demonstrate he had authority to commence the Action on behalf of the eight other Plaintiffs, so enhanced Costs were therefore ordered against him personally.

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