The Plaintiff, Sobeys Capital Incorporated (“Sobeys”), applied for Summary Judgment against the Defendant, Whitecourt Shopping Centre (GP) (“Whitecourt”) in two Actions stemming from a roof collapse.

The Court canvassed the case law interpreting Rule 7.3 in some detail. The Court confirmed that the “modern test” for Summary Judgment has been adopted in Alberta and permits Summary Judgment where a Court can fairly and justly make necessary findings of fact, apply the law to those facts, where the process is a proportionate, more expeditious, and a less expensive means to resolve a dispute than going to Trial. Summary Judgment can be granted where the Court finds there is no issue of merit requiring a Trial.

Notably, the Court discussed a “dispute” in the jurisprudence regarding the burden of proof to be met by a party applying for Summary Judgment. In some very recent cases the Court of Appeal has stated that the standard of proof to show there is no issue of merit requiring a Trial is on a balance of probabilities. However, other cases from the Court of Appeal state that the burden of proof is to show that the applicant’s position is “unassailable.” The Court stated that it has been advised that the Court of Appeal has assembled a panel to resolve this issue in September of 2018.

The Court further confirmed that once an applicant for Summary Judgment meets the preliminary burden of proof on a balance of probabilities, the burden then shifts to the responding party to show there is arguable merit to the case. Applying the test for Summary Judgment, the Court stated that Summary Judgment was appropriate in this case regardless of what burden was imposed on Sobeys as the applying party. The Court ruled that the damages claimed by Sobeys were clearly the natural result of breaches of the Head Lease by Whitecourt. Summary Judgment was granted in both Actions.