SABEY v WHIDDEN, 2016 ABQB 487
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
The Plaintiff commenced an Action against the Defendant doctor on the basis that he negligently performed plastic surgery on the Plaintiff. The Defendant unsuccessfully applied for Summary Dismissal of the Action before a Master, and appealed the Decision to Justice Strekaf. Strekaf J. noted that the Master had identified the correct legal test for Summary Judgment, and had observed that a party applying for Summary Judgment must put their best foot forward, which required that the party “present evidence to show sufficient ‘merit’ to establish a genuine issue requiring a trial” and “speculating that evidence might be available at a trial is not sufficient”. Strekaf J. noted that the Master could not dispose of the Action by way of Summary Dismissal based on the record before the Court at the time.
On Appeal, the Defendant sought leave to adduce two additional Affidavits pursuant to Rule 6.14(3). Justice Strekaf considered prior leading authorities, and stated that the test under Rule 6.14(3) for adducing new evidence on Appeal from a Master’s Decision is “very lax”, but the evidence must be, in the opinion of the Court, relevant and material. Her Ladyship held that the additional evidence in this case was relevant and material, and therefore it was admitted. Following the consideration of the substance of the Defendant’s Appeal, Justice Strekaf allowed it in part, but held that some of the issues were better decided at Trial.View CanLII Details