This was an Application by the Plaintiffs seeking Summary Judgment against three out of four Defendants. The dispute centred around mortgage syndication agreements (“MSAs”) between the Plaintiffs and Heritage Capital Corporation “(HCC”), which enabled them to invest in loans to Lougheed Block Inc. (“Lougheed”). According to the MSAs, HCC was supposed to secure these loans with a mortgage and personal guarantees. However, the mortgage was improperly registered, and personal guarantees were never secured. As a result, when the property was foreclosed, the Plaintiffs lost their investments with no repayment.

Applications Judge Park explained that Rule 7.3(1) sets out the guidelines for Summary Judgment, stating that it is available to a Plaintiff when there is no defence to their claim or to any part of it, or if the only genuine issue is the amount of damages to be awarded. Applications Judge Park outlined the test for Summary Judgment established in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49, and further refined by the Court of Appeal in Hannam v Medicine Hat School District No. 76, 2020 ABCA 343. Referencing these decisions, the Court noted that Summary Judgment is appropriate where the presiding Judge is confident in the record and prepared to exercise judicial discretion to resolve the dispute without trial. Further, Applications Judge Park stated that this is warranted where the moving party has established the material facts on the balance of probabilities, demonstrating that the law supports their position. However, the Court highlighted that Summary Judgment cannot be granted if there is a genuine issue that requires a trial.

The Plaintiffs also sought to pierce the corporate veil to hold the sole director of HCC, JR Smith (Smith), personally liable for HCC’s alleged wrongdoings. Applications Judge Park referenced the factors used in determining control over a corporation, as outlined in Tirecraft Group Inc. (Receiver of) v High Park Holdings ULC, 2020 ABQB 653. The Court concluded there was insufficient evidence to satisfy the criteria for piercing the corporate veil, namely that the Plaintiffs did not establish that HCC was entirely dominated by Smith or that HCC acted merely as Smith’s agent.

Applications Judge Park found that, while HCC breached its duty by failing to properly secure the investments, the Plaintiffs failed to demonstrate that this breach resulted in a loss. There was no evidence to suggest that realizing on the guarantees would have been possible even if they had been secured. Further, the Court determined that the Plaintiffs’ claims against Smith were insufficiently substantiated to enable resolution without a trial.

Ultimately, Applications Judge Park concluded there was insufficient evidence to support a finding of Summary Judgment, and the Application was dismissed.