7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff brought an Action against the Defendant for unpaid invoices relating to gas transportation and processing agreements, and sought Summary Judgment. The Defendant filed a Counterclaim against the Plaintiff. The Defendant opposed the Summary Judgment Application, arguing that a Trial was necessary to determine what, if any, amounts were owed because of the existence of accounting errors, overcharges, and possible set-off. The issue before the Court was whether the Plaintiff was entitled to Summary Judgment for the amount it had invoiced to the Defendant, subject to potential later adjustments, or whether Judgment could only be granted once the amount was determined at Trial.

The Court stated that a Plaintiff may apply for Summary Judgment under Rule 7.3 where there is no defence to a claim or part of it, or where the only real issue is the amount to be awarded. Justice Strekaf noted that, pursuant to the Alberta Court of Appeal’s decision of Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 (CanLII), Rule 7.3 is to be interpreted broadly. The modern test for Summary Judgment is to “examine the record to see if a disposition that is fair and just to both parties can be made on the existing record”.

Before considering the substantive Summary Judgment issue, Strekaf J. considered whether the Affidavits provided by the Plaintiff were sufficient to satisfy the evidentiary requirement in Rule 7.3(2). Her Ladyship held that the Plaintiff’s affiant, who was the Plaintiff’s manager of production revenue accounting, was sufficiently well informed and qualified to provide the evidence contained in his Affidavits. Justice Strekaf noted that it has been recognized in Alberta that a corporate representative need not be personally involved in the transactions in question in order to provide evidence on a Summary Judgment Application.

Strekaf J. observed that this case was not typical to a Summary Judgment Application arising from most commercial agreements. Typically, in order for a Plaintiff to collect on an unpaid account, they must satisfy the Court that the amounts are owing under the agreement, not that they have simply been billed. The Court commented that it is unusual for a party to be able to obtain Summary Judgment on the basis of amounts billed, subject to later adjustments. However, given the contractual language used by the parties in this case, Justice Strekaf held that the Plaintiff was entitled to partial Summary Judgment for the amount billed, plus interest and minus adjustments and set-off amounts. The Defendant was entitled to pursue an audit and Counterclaim to establish any adjustments.

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