PYRRHA DESIGN INC v PLUM AND POSEY INC, 2016 ABCA 12

BERGER and McDonald JJA and SCHUTZ J (AD HOC)

1.2: Purpose and intention of these rules
1.3: General authority of the Court to provide remedies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff commenced an Action claiming that the Defendants had breached the terms of a settlement agreement. The Plaintiff applied for Summary Judgment. The Defendants did not formally apply for Summary Dismissal, but argued in their brief that the claim should be summarily dismissed. Summary Dismissal of the Claim was granted and the Plaintiff appealed.

The Plaintiff argued on Appeal that the Defendants failed to formally comply with Rule 7.3(2), which dictates that an Application for Summary Dismissal must be supported by an Affidavit swearing positively that one or more of the grounds for Summary Dismissal have been met. The Court of Appeal held that the Defendants met the substance of Rule 7.3(2) and the underlying basis for it. The Court of Appeal noted that the Court possesses the inherent jurisdiction to control its own processes, which jurisdiction is also expressly granted by the Judicature Act, RSA 2000, c J-2 and Rule 1.3. The Majority of the Court concluded that the Chambers Judge did not err in granting Summary Dismissal on the record before the Court, and dismissed the Appeal.

In dissent, McDonald J.A. observed that neither Rule 1.2 nor the new Summary Judgment regime permits disregard for the Rules of Court. Rule 1.2(3)(a) expressly states that the parties must identify the real issues in dispute and facilitate the quickest means of resolving the Claim with the least expense. McDonald J.A. observed that Rule 7.3 does not specify what is to happen in the event that an Application for Summary Judgment is unsuccessful; it only specifies in Rule 7.3(3) what the Court may do in the event the Application is successful. Since the Defendants had not filed an Application for Summary Dismissal, at minimum they ought to have specifically and unequivocally advised Appellant’s counsel of their intention to utilize the Appellant’s own Application for Summary Judgment to seek an Order to have the entire Claim dismissed, which they did not do.

With respect to Rule 1.3, McDonald J.A. stated that the provision simply clarifies the jurisdiction generally of the Court of Queen’s Bench, and is not to be interpreted in a manner that would improperly permit the Court to grant relief when it would be unfair or inappropriate to do so. McDonald J.A. would have allowed the Appeal and would have directed that the Appellant re-apply for Summary Judgment before another Justice of the Court of Queen’s Bench.

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