SHN GRUNDSTUECKSVERWALTUNGSGESELLSCHAFT MBH & CO SENIORENRESIDENZ HOPPEGARTEN-NEUENHAGEN KG v HANNE, 2012 ABQB 624
7.5: Application for judgment by way of summary trial
7.8: Objection to application for judgment by way of summary trial
7.9: Decision after summary trial
In Summary Trial proceedings, the Plaintiff sought recognition and enforcement in Alberta of a Judgment issued by the Berlin Regional Court of Germany, as well as the associated Costs Judgment. The Defendant raised a preliminary issue, arguing that Summary Trial proceedings were inappropriate to determine the enforceability of the foreign Judgment.
The Plaintiff argued that Summary Trial would be inappropriate because (1) viva voce evidence was necessary to determine the issues, (2) the translation of documents was unreliable, (3) expert evidence would be required to understand the German Court system, and (4) conventional pre-trial procedures and a full civil Trial were necessary to resolve conflicts in the expert evidence before the Court. The Court disagreed.
The Court affirmed that jurisprudence decided under the old Rules remains relevant in determining the suitability of Summary Trial. Thus the Court was guided by the test articulated in JN v GJK, 2004 ABCA 394, and the factors identified in Pecek v Fedun, 2007 ABQB 133 and Duff v Oshust, 2005 ABQB 117. Summary Trial is appropriate if (1) the Court can decide disputed questions of fact through the means available in a Summary Trial, and (2) It would be just to decide the issues through those means.
In determining whether the test for Summary Trial is met, a Court should consider, inter alia, the amount of money involved, the complexity and urgency of the matter, prejudice, costs, the import of Questioning in the context of the case, and whether resolution will depend on findings of credibility.
In this case, the Court found that although the Judgment for over €1.5 million put a large amount of money in issue, Summary Trial proceedings were appropriate. Erb J. found that the protracted nature of the proceedings resulted from the Defendant’s conduct, rather than the complexity of the case. Noting that counsel for the Defendant characterised Questioning in this dispute as a fruitless exercise, the Court held that there was little likelihood that Questioning would bolster the Defendant’s evidence. The Defendant had also failed to examine other potential witnesses when given the opportunity. Although there were differences of opinion in the expert Affidavits explaining the German legal system, the Court held that these differences were not sufficient to require a full Trial to resolve issues of credibility. Furthermore, Erb J. held that the conflict in the Affidavit evidence did not have to be resolved to determine the issues before the Court.View CanLII Details