7.3: Summary Judgment (Application and decision)

Case Summary

Devon Hotel Ltd., 836618 Alberta Ltd., and 836618 Alberta Ltd. operating as Devon Hotel Ltd (the “Applicants” or “Owners”) applied for an Order for Summary Judgment against Lorne Prunkl (the “Plaintiff” or “Respondent”), pursuant to Rule 7.3 of the Rules of Court. The primary issue was whether the Applicants were entitled to Summary Judgment dismissing the Plaintiff’s claim against them on the basis that there was no merit to the claim and there were no genuine issues for Trial.

The Applicants were owners of a property, part of which was leased by another Defendant, Tammy Jean’s Diner Ltd. (the “Diner”). The Plaintiff was injured on the Diner’s property. The Diner had not obtained liability insurance as required, and the Plaintiff sued the owners of the property and the lessee Diner (the “Defendants”).

The Applicants stated that they were not occupiers of the property as defined under the Occupiers’ Liability Act, RSA 2000, c O-4. The Applicants also argued that insurance was optional and for their own benefit, and there was no requirement for them to purchase a policy of comprehensive general liability indemnifying the lessee Diner. The Plaintiff countered by stating that the Applicants had control over the premises. The Plaintiff also argued that where the lessee Diner failed to obtain insurance coverage, the Applicants were required to arrange for insurance coverage to prevent the risk of loss.

After canvassing the law, the Court held that there was no satisfactory or clear evidence on the issue of whether the Owners were in sufficient control of the premises, thus making the matter unsuitable for summary disposition. The Court also held that, given the facts of the case and the interpretation of the lease, there was still unanswered questions and issues which required further evidence for the Court to make a fair and just disposition of the matter. As a result, the Court concluded that it was unable to make a determination that there was no merit to the Plaintiff’s claim in the Action. The Court denied the Application for Summary Judgment.

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