ROMAN CATHOLIC BISHOP OF THE DIOCESE OF CALGARY v SCHUSTER, 2019 ABCA 64
MCDONALD, WAKELING AND PENTELECHUK JJA
1.2: Purpose and intention of these rules
4.33: Dismissal for long delay
7.3: Summary Judgment (Application and decision)
The Court heard an Appeal of the Decision of a Chambers Judge upholding a Master’s Decisions to dismiss the Plaintiff’s Application for Summary Judgment against one of the Defendants, Schuster, and the Defendants’ Application to strike the Plaintiff’s claim for long delay pursuant to Rule 4.33.
The Court considered the test for Summary Judgment. Despite noting that at that time, there were two lines of authority for the test for Summary Judgment in Alberta, the Court held that under either approach, the Appeal concerning Summary Judgment should be dismissed, given that a fair decision on the facts and the law could not be made on the record before the Court. Further, the Court noted that the Chambers Judge was owed deference, and since the Chambers Judge did not make a reviewable error, the Appeal on Summary Judgment should be dismissed.
The Court then turned to the Application pursuant to Rule 4.33. The relevant question was whether a partial discontinuance of the Action against five Defendants was a step that significantly advanced the Action. In context, the discontinuances arose because of a Notice to Admit whereby it was admitted that any of the impugned Actions and communications were all carried out by one of the Defendants alone, Schuster. Accordingly, discontinuances were negotiated such that the only remaining Defendants were Schuster and his professional corporation.
In light of this context, the Court held that the discontinuances advanced the Action as “[t]he number of defendants was reduced and issues were narrowed. Unquestionably, the necessary trial time is also reduced. Schuster has not demonstrated any reviewable error and this appeal is also dismissed.”
As such, the Court also dismissed the Defendants’ Appeal with respect to the Application under Rule 4.33, and in doing so, considered the fundamental principles of the Rules as set out in Rule 1.2.View CanLII Details