The Appellant, 1536679 Alberta Ltd, (“153 Ltd”) appealed the Decision of a Chambers Judge granting Summary Judgment in a foreclosure Action in favour of the Respondent, Stankovic.

The Panel began by stating that the Court must consider whether the record before the Chambers Judge allowed the Chambers Judge to make the necessary findings of fact and apply the law. And if so, whether there was any substantive reason why the Summary Judgment process should not be used. The Panel clarified that there is no “symmetry of burdens” in a Summary Judgment Application: a Plaintiff/Applicant seeking Summary Judgment needs to establish that there no defence to its claim in order to show that there is no genuine issue for Trial. However, a Defendant/Respondent resisting Summary Judgment need only prove that the Applicant has not met its burden of showing there is no genuine issue for Trial.

In this case, the Chambers Judge granted partial Summary Judgment by finding that a mortgage was in default. However, the Chambers Judge also found that there were triable issues in regards to 153 Ltd.’s Counterclaim. The Panel ruled that this was an error. The issues in the Statement of Claim on the mortgage and those underlying the Counterclaim were sufficiently connected that it was not possible that one claim entailed triable issues while the other did not.

Therefore, the Panel ruled that the Decision of the Chambers Judge did not “comport with ‘overall considerations of fairness and the ability ‘to achieve a just result.’” The Appeal was allowed and the Chambers Judge’s Decision was set aside.