This case dealt with a preliminary Application to determine whether a Summary Judgment Application was a nullity because it was in essence a Severance Application, where leave was not sought or granted to sever the issues to be heard at the proposed Summary Judgment Application.

In allowing the Application to proceed, Graesser J. noted that certain wording in Rule 7.1(1)(a)(i) (having to do with severance) is substantially the same as in Rule 7.3(1) (having to do with Summary Judgment) and that these Rules are to be read together. Both Rules permit the Court to deal with the entirety of a claim or merely part of it, thus broadening the instances where severance is available (relative to the old Rules). Graesser J. conveyed that this is done to offer litigants the choice to use the appropriate Rule that will best promote the objectives of the Foundational Rules. Severance “hives off” an issue from the Action, but the determination of the issue is still subject to disclosure procedures and mandatory Alternate Dispute Resolution. Summary Judgment Applications do not require either the disclosure process or mandatory Alternate Dispute Resolution.

It was also argued that the Summary Judgment Application should not proceed because the Respondent had not amended its pleadings in accordance with established case law which addressed Striking portions of a Plaintiff’s Statement of Claim. However, Graesser J. distinguished this case from Elbow River Marketing v Canada Clean Fuels Inc, 2011 ABCA 258 (“Elbow”) stating that Elbow was “not a determination that in no case can summary judgment proceed in the face of a motion to amend the pleadings, or if the pleadings are not settled.” Rather, “[e]ach case should be dealt with on its merits.”

The Court acknowledged that, unlike the old Rules, pursuant to Rule 7.2 a Summary Judgment Application can be brought any time after the Action is commenced, one does not have to wait until a Statement of Defence is filed. With respect to Rule 7.3(1)(c), Graesser J. indicated that it is contemplated that in some cases quantification of the claim will remain after liability is decided.