6.46: Referee’s report
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiffs applied for Summary Judgment against the Defendant and Summary Dismissal of the Counterclaim.

Feth J. cited Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 and Hannam v Medicine Hat School District No 76, 2020 ABCA 343 for the propositions that Summary Judgment is available where the moving party establishes the facts at issue on a balance of probabilities and demonstrates that no genuine issue remains for a Trial. Further, the evidence must be sufficient so that the Judge is confident the dispute can be fairly resolved without a Trial.

If the moving party meets the initial burden of showing “no merit”, the resisting party must then put its best foot forward to demonstrate that a triable issue remains. Feth J. reminded us that a party cannot resist summary disposition by speculation about what might turn up in the future.

Feth J. further commented that although the Application does not contemplate Summary Judgment on difficult factual questions, Summary Judgment is not limited to cases where the facts are not in dispute. The Court can make contested findings of material facts and make material fact findings.

Citing Hryniak v Mauldin, 2014 SCC 7 and Weir-Jones, Feth J. commented that the facts pleaded in the Statement of Claim and the Counterclaim are not assumed to be true. The record must enable the Court to make the necessary findings of fact and determine the applicable law. The Court must also reflect on whether the claim or part of it may be fairly and justly resolved at this stage of the litigation.

Having found that the liability for the debt had been determined in foreign Courts of competent jurisdiction, Feth J. concluded that the Plaintiffs were entitled to partial Summary Judgment. As the full amount owing could not be determined on the evidence submitted, Feth J. referred the determination of the balance of the debt amount to a Referee, pursuant to Rule 7.3(3).

Feth J. further held that, pursuant to Rule 6.46, the Referee shall make a report to the Court on the assessment of the debt amount. A copy of the report must be filed and served on the parties. After the report has been served, a party may apply to adopt the report in whole or in part, vary the report, require an explanation from the Referee, remit the whole or part of the assessment to the Referee for further consideration, or decide the assessment on the evidence taken before the Referee with or without additional evidence. The Court held that the Acting Chief Justice would then determine whether that Application should be assigned to another Judge.

As the Counterclaim allegations had been determined by Courts of competent jurisdiction, Feth J. dismissed the Counterclaim.

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