The Plaintiff brought an Action against a number of Parties, including the Crown, claiming that she was sexually assaulted while under a Temporary Guardianship Order (“TGO”) in favour of the Director of Child Welfare. The Plaintiff sought Summary Judgment of her claim against the Crown as it related to trespass and unlawful confinement. The Plaintiff relied on the Director’s failure to file a care plan with the Court within the 30 days following the granting of the TGO, which rendered the TGO void.

The Plaintiff relied on Rule 7.3(1), which provides that a party may apply to the Court for Summary Judgment if there is no defence to a Claim or part of a Claim. Citing Manufacturers’ Life Insurance Co v Executive Centre at Manulife Place Inc, 2011 ABQB 189, Encana Corporation v ARC Resources Limited, 2011 ABQB 431 and Tottrup et al v Clearwater No 99 (Municipal District), 2006 ABCA 380, Graesser J. held that the test for Summary Judgment under the new Rules is the same as that applied under the former Rules. Specifically, the moving party must establish on a balance of probabilities there is no genuine issue for Trial. The burden then shifts to the responding party to show that there is a genuine issue for Trial. In short, for Summary Judgment to be granted, it must be beyond doubt that no genuine issue for Trial exists. This standard is not met if the Judge must assess the quality or weight of evidence, decide a significant question of law or conduct a careful analysis of a complex legal test.

Graesser J. held that Summary Judgment was not available to the Plaintiff because she failed to prove that the Crown had no defence to the Claims against it. Moreover, Graesser J. held that the Plaintiff’s Claim was without support in Canadian law, and that the issues raised by the Statement of Claim required a strong evidentiary foundation before the Court could make a determination as to their veracity.