7.3: Summary Judgment (Application and decision)

Case Summary

This Action involved claims against a general contractor and its principal in respect of their allegedly improper construction of a residential building.

The Defendants issued Third-Party Claims against various subcontractors. Prior to the Third-Party Claims being filed, however, one of the Third-Party Defendants signed a settlement agreement and accompanying release with the Plaintiff. When the Third-Party Claim against it was filed, that third party sought summary dismissal based on the release.

Applying Rule 7.3, the Court noted that the test for summary dismissal requires assessment as to whether it is possible to make a fair summary determination based on the available record and the nature of the disputes between the parties and, if so, whether summary determination will be a more expeditious route to resolution than trial.

Applying this test and case law on the subject of claims for contribution, the Court held that the release was not sufficient to dismiss the Third-Party Claim against the third party that had settled because the scope of the release was narrower that of the Third-Party Claim. Accordingly, there remained triable issues which were not excluded by the release and the Third-Party Claim could not be summarily dismissed.

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