1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff advanced a Claim against a number of Defendants on the basis that they had participated in or executed real estate transactions that defrauded the Plaintiff Bank of mortgage loan proceeds. The Plaintiff brought concurrent Applications to strike portions of the Statements of Defence of certain Defendants, and for Summary Judgment with respect to certain Defendants and properties identified in the Statement of Claim.

Pursuant to Rule 3.68, the Plaintiff applied to strike parts of the Statements of Defence of certain Defendants on the basis that those portions were frivolous, irrelevant or improper, and did not disclose a reasonable defence to a Claim. Romaine J. held that Rule 3.68 was similar to former Rule 129, and is to be interpreted in accordance with Rule 1.2, to fairly and justly resolve Claims in a timely and cost-effective way. Romaine J. further held that Rule 1.2 does not sacrifice due process for efficiency. Citing First Calgary Savings and Credit Union Limited vPerera Shawnee Limited, 2011 ABQB 26, Romaine J. held that the test to be applied in an Application under Rule 3.68 is whether it is plain and obvious that there is no reasonable defence to a Claim. In making such a determination, the Court must assume that all allegations of fact in the Statement of Defence are true, and then determine whether those facts disclose a defence to the claim.

The Plaintiff also applied for Summary Judgment pursuant to Rule 7.3, citing the two-step test set out in Eng vEng, 2010 ABCA 19. This test provides that the Plaintiff bears the evidentiary burden of proving its cause of action on a balance of probabilities. The evidentiary burden then shifts to the Defendant who can avoid Summary Judgment by proving that there is a genuine issue for Trial. Romaine J. held that the Plaintiff had established a prima facie claim, and the evidentiary burden therefore shifted to the Defendants to demonstrate that there was a genuine issue to be tried. Romaine J. held that, with respect to a number of the Defendants, she was satisfied that there were legally relevant facts which were disputed and could not be summarily disposed of. As such, Romaine J. refused Summary Judgment with respect to a number of Defendants, and dismissed the Application to strike the pleadings of those Defendants. She reserved her decision with respect to the Summary Judgment Application of one Defendant, and granted Summary Judgment against another Defendant who failed to appear or make submissions.

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