Friesen J

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The Applicants, Eleanor Simmie (“Ms. Simmie”) and Ja-Neen Janela (“Ja-Neen”), initially sought Summary Judgment in accordance with Rule 7.3 on a debt claim (the “Application”). The Applicants claimed they loaned money to the Respondent, JRJ Concrete Ltd. (“JRJ Concrete” or “the company”), at the request of the President of the company, Carlos Janela (“Carlos”) (collectively, the “Respondents”). At the time the loans were made, Carlos was married to Ja-Neen and Ms. Simmie was his mother-in-law. The only condition of the loan was future repayment in full, with interest.

In defending the Application, the Respondents argued that the Applicants did not loan money to JRJ Concrete, but rather, to Carlos personally, and therefore, the company was not responsible for repayment of the debt. Carlos was not made a Third Party to the Action by either the Applicants or the Respondent. The Master in Chambers denied the Application finding that relevant credibility issues arising primarily from the evidence of Carlos and other representatives of JRJ Concrete on the issue of knowledge as to the parties to the loans could not be resolved on the record before him.

Justice Friesen noted the applicable jurisprudence and Rule 6.14 for the proposition that, in practical terms, an Appeal from a Master’s Decision is akin to, if not actually, a de novo hearing given that Rule allows for additional or new evidence to be put before the Chambers Judge hearing the Appeal.

Friesen J. noted that the documentary evidence in the case clearly corroborated the evidence of Ja-Neen and Ms. Simmie that they loaned money to JRJ Concrete at Carlos’ request. Justice Friesen found that Her Ladyship was able to make the necessary findings of fact on the evidence before the Court and that viva voce evidence was not required to resolve the dispute. Justice Friesen concluded that the Applicants had met their burden of illustrating that there was no defence or genuine issue requiring a Trial, granted the Appeal, and granted Summary Judgment to the Plaintiffs.

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