master wacowich

7.3: Summary Judgment (Application and decision)

Case Summary

In an Action brought as a subrogated Claim on behalf of the Plaintiff’s insurers who sought to recover the payment made as a result of a fire which destroyed a hotel owned and operated by the Plaintiff Corporation. The Defendants brought an Application for Summary Dismissal under Rule 7.3, and the Plaintiff brought a Cross-Application for Summary Judgment under the same Rule.

Master Wacowich relied on the test for Summary Judgment as set out by the Court of Appeal in 776926 Alberta Ltd. v Ostrowercha, 2015 ABCA 49 (CanLII) which stated that Summary Judgment can be given if a disposition that is fair and just to both parties can be made on the existing record, and, substantively, “whether there is in fact any issue of merit that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily”.

As the facts were not in dispute, Master Wacowich conducted an analysis of the legal issues which were raised (relating to the doctrines of vicarious liability, common employees, and shared employees) and found that the Defendants would succeed if this matter were to proceed to Trial. Summary disposition was therefore warranted. The Defendants’ Application for Summary Dismissal was granted, and the Plaintiff’s Cross-Application for Summary Dismissal was dismissed.

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