The Plaintiffs purchased a home from the Defendants. The Plaintiffs discovered a water leak in the home’s basement and commenced litigation alleging that the house contained pre-existing defects which were not adequately disclosed over the course of the sale. The Defendants commenced a Third Party Action against the real estate agent for the sale. The Third Party Defendant applied for Summary Dismissal of the Third party Claim against him.

The Defendants contested the Summary Judgment Application on the basis that, among other things, there were many disputed facts which necessitated a Trial. Master Breitkreuz noted that Summary Judgment rules “should be interpreted broadly, favoring proportionality and fair access to the affordable, timely and just adjudication of claims”. Summary Judgment was appropriate where there was no genuine issue requiring Trial. The question was whether the moving party’s position was “so compelling that the likelihood of success is very high such that it should be determined summarily”.

Master Breitkreuz acknowledged that the nature of evidence required, or the issues at play in some cases made Summary Judgment inappropriate. Alberta’s Rules did not provide “enhanced-fact-finding powers” to Chambers Judges for Summary Judgment Applications. Further, Masters could not weigh evidence and any fact-finding abilities were restricted by Section 9(3)(b) of the Court of Queen’s Bench Act, RSA 2000, c C-31, which provided that Masters did not have the jurisdiction to determine disputed or contentious questions of fact unless the parties agreed to the disposition of the questions in Chambers on Affidavit evidence without a Trial. Subject to limited exceptions, Summary Judgment was typically not appropriate where there was conflicting evidence. These exceptions included situations where a Judge was able to make a determination by assuming that the evidence of the party opposing Summary Judgment was correct; when the conflicting evidence was irrelevant to the grounds for Summary Judgment; and when evidence was either “destroyed by cross-examination on affidavit or introduction of other evidence that would render that party’s evidence completely non-credible”.

Master Breitkreuz noted that the first step in determining whether to grant Summary Judgment required the Court to determine whether viva voce evidence was necessary. It was not essential that the Court see the witnesses, but before the Court could determine whether Summary Judgment was appropriate, it should engage in a 6-step analysis of the evidence:

1. The Court “should presume that the best evidence from each side is before the court”, and each party must put their “best foot forward”;

2. The Court must “consider whether an absence of evidence leads to a negative inference on certain points”;

3. The Court should consider the “complete package” and the admissibility all of the evidence;

4. The Court should consider whether there is a conflict in the evidence; if so, the Court should ask whether Questioning has resolved the conflict, or whether the evidence is purely self-serving;

5. The Court should examine the evidence for admissibility, sufficiency, and reliability and may apply the law to the facts without deciding a “genuine question of law”; and

6. Finally, the Court can “make a determination on the summary judgment claim”.

Master Breitkreuz concluded that the legal issues relevant to the Action were unsettled, complex or intertwined with the facts, and that this made it necessary to have a full Trial. Additionally, the Defendants alleged fraudulent misrepresentation against the Third Party Defendant. Master Breitkreuz noted that in order to determine whether the Third Party Defendant knowingly made false statements, or was reckless or willfully blind to the truth, the Court was required to weigh evidence. In this case, it was not clear who was responsible for the misrepresentation, and the Court would be required to undertake a credibility assessment to determine the facts. The Third Party Defendant’s Application was dismissed.