SCOTIA MORTGAGE CORPORATION v MESHKATI, 2019 ABQB 267
1.4: Procedural orders
3.43: How to make claim against co-defendant
4.36: Discontinuance of claim
7.3: Summary Judgment (Application and decision)
The Plaintiff mortgagor sought to recover a loss incurred upon foreclosure. An Application for Summary Judgment was brought against the straw purchasers of the mortgaged property (the “Arlains”). At first instance, Master Farrington dismissed the Application.
On Appeal, Justice Woolley reviewed the test for Summary Judgment as recently settled by the Alberta Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII). Specifically, Her Ladyship emphasized that a finding of Summary Judgment would require i) a record allowing resolution of the dispute on a summary basis; ii) the Plaintiff to demonstrate facts proven on a balance of probabilities establishing that the Arlains had no defence; iii) that the Arlains not show a genuine issue requiring a Trial based on the nature of the issue or its merits; and iv) the Court’s confidence in the state of the record sufficient to exercise discretion in summarily resolving the dispute. Justice Woolley found this test to have been satisfied.
Upon reaching the decision to grant Summary Judgment, the Court addressed the potential prejudice to the Arlains’ Co-Defendants should the Plaintiff discontinue the Action subsequent to the Order for Summary Judgment. The Court observed that a Notice of Claim Against Co-Defendants had been served by the Arlains pursuant to Rule 3.43, and that the law was unclear whether the Arlains would be able to pursue their Co-Defendants if the Plaintiff discontinued the Action. As such, Justice Woolley exercised the Court’s authority in Rule 1.4 to order that the Plaintiff not be permitted to discontinue the Action against the Arlains’ Co-Defendants, pursuant to Rule 4.36(1), without leave of the Court.View CanLII Details