The Plaintiff/Applicant, Nora MacDonald Stackard (“Nora”), applied for Summary Judgment pursuant to Rules 7.3 for the return of a mortgage and its proceeds from the Defendant, 1256009 Alberta Ltd. (“125”). 125 had been controlled by the remaining Defendants, Arthur John Jerome Stackard (“Arthur”) (represented in the Action by his estate), and Rosa Elena Dorath (“Rosa”).

The Application followed a familial dispute between the parties. Nora was Arthur’s mother (both now deceased). Nora had been living with her daughter, Deborah, in South Africa until Arthur and his brother arranged for her return to Canada to live with Arthur and his partner, Rosa. At that time, Nora’s main source of income was a vendor take-back mortgage (the “Mortgage”) that she had from the sale of her previous home in Calgary.

Upon Nora’s return to Calgary, Nora executed a Mortgage Transfer Agreement (the “MTA”) which transferred the Mortgage to the Defendant, 125, which was wholly owned by Arthur. In April of 2012, Nora sued 125, Arthur’s estate, and Rosa in regards to the Mortgage and claimed, inter alia, that Arthur and Rosa had misappropriated the funds from the Mortgage for their own benefit. Nora requested that the Mortgage or 125’s shares be transferred to her and that Judgment be entered for all funds expended for the personal benefit of Arthur and Rosa.

Jones J. confirmed that Summary Judgment is available to a litigant under Rule 7.3 where there is no genuine issue for Trial, and there will be no genuine issue for Trial where the Court can make a fair and just determination on the merits based on the existing Court record. This will be the case when the process: (1) allows the Court to make the necessary findings of fact; (2) allows the Court to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Furthermore, Jones J. noted that there is still an unresolved uncertainty with respect to the appropriate burden of proof to establish that there is no genuine issue for Trial. The recent Court of Appeal decision of Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (CanLII), states that an Applicant need only establish that there is no genuine issue based on a balance of probabilities. However, in the subsequent Decision of Whissell Contracting Ltd v Calgary (City), 2018 ABCA 204 (CanLII), the Court of Appeal returned to its previous position that an Applicant bears the burden of showing that it is “unassailable” that no genuine issue for Trial exists.

Jones J. stated that this uncertainty has no bearing on the Court’s Decision in this case, as Summary Judgment cannot be awarded based on either standard. The Court could not definitively rule on the terms of the MTA based on the existing record, which meant that it could not determine many of Nora’s claims for relief.

The Court also addressed the Defendants’/Respondents’ claims that Nora had improperly expanded the scope of relief in the Action by requesting relief in her Brief that had not been specifically pled. Jones J. noted the Court’s ability pursuant to Rule 3.65 to amend pleadings, even during argument, provided this does not result in surprise or prejudice. In this case, the expanded relief had been duly articulated in Nora’s Brief and responded to in the Defendant’s Brief. Therefore, there was no surprise or prejudice.

Furthermore, the Court also addressed Nora’s claim that the Defendants cannot claim benefit or entitlement under the MTA when they deny its existence in their Statement of Defence. Jones J. noted the apparent contradiction between the claims in the Statement of Defence, but referred to Rule 13.8(1)(a) which allows for alternative claims or defences to be made. Jones J. determined that he would interpret the seemingly contradictory defences as alternative arguments. The Application was dismissed.