The Plaintiff/Applicant was the executor in an estate who claimed indemnification from the beneficiaries for the estate’s tax liability after the estate’s tax assessment exceeded the holdback the executor retained. The Plaintiff applied for Summary Judgment to determine all issues in the Action. The Applicant’s counsel was ill the day of the hearing, so the parties proceeded on the basis of their written submissions only.

Justice Little noted that the test for Summary Judgment set out in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 (“Weir-Jones”) sets out four key considerations as to whether the procedure and outcome will be just, appropriate, and reasonable. The considerations are: a) whether there are uncertainties in the facts, the record, or the law which reveal a genuine issue regarding a Trial; b) whether the moving party met the burden to show that there is no genuine issue requiring a Trial; c) whether the responding party put its best foot forward to demonstrate from the record that there is a genuine issue requiring a Trial; and d) whether the state of the record is such that the presiding Judge is prepared to exercise their discretion to summarily resolve the dispute.

The Respondents asserted that there were uncertainties in the law such that the proper application of the law to the facts required a Trial. Justice Little held that uncertainties in the law referred to in the Weir-Jones test only refers to cases which are heavily evidence-based precedent setting cases or where there are larger public policy issues at play. The simple disagreement between the parties over the law where it is not trite does not disqualify a case from Summary Judgment.

Little J. found that there was a genuine issue regarding whether the Applicant had exercised her duties with reasonable care and diligence such that she should not bear the consequences of failing to retain a sufficient holdback for taxes. As such, Little J. held that the Applicant did not meet her burden of demonstrating there was no genuine issue requiring a Trial or that there was no merit to the defence.

Justice Little found that the record was clear, the litigation itself was old (having been commenced in 2014), and that the amounts at issue were small. Little J. further found that the parties had demonstrated that they did not wish to proceed to Trial in a related litigation because they resolved that case through a settlement. Little J. noted that despite the Applicant not demonstrating that there was no merit to the Respondents’ defence, neither was there a genuine factual issue requiring Trial as the Respondents asserted. Little J. was inclined to summarily dismiss the Action, however, determined that Rule 7.3 did not specifically authorize that remedy where the Defendant did not specifically apply for it. Little J. commented that the Court may have the inherent jurisdiction to summarily dismiss an Action in the absence of that remedy being applied for, however, in the absence of submissions from the parties on that point, Justice Little did not exercise that jurisdiction.

The Application for Summary Judgment was dismissed.