STEER v MAWJI, 2017 ABQB 762
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
The Plaintiffs commenced an Action following their purchase of a newly constructed home from the Defendant builder and the building company’s principal. The Plaintiffs claimed that there were defects in the home, and alleged negligence with respect to the construction of the building, and a breach of the representations and warranties contained within the purchase contract.
The Plaintiffs adduced evidence in an Affidavit with respect to the presence of mould in the home which consisted of a lab report and a physician’s report. Master Prowse held that these records were hearsay, and were inadmissible in an Application for Summary Judgment pursuant to Rule 13.18(3).
The individual Defendant attested that he had no knowledge of any facts which rendered the property dangerous or unfit for habitation. Master Prowse noted that in an Application for Summary Judgment, the Respondent’s evidence is presumed to be true for the purposes of the Application only. Given the individual Defendant’s assertion, the Plaintiff’s Claim for breach of contract therefore could not succeed on an Application for Summary Judgment. Master Prowse held that a determination could not be made regarding the Defendants’ negligence in the absence of expert evidence.
The Plaintiffs’ Application for Summary Judgment was dismissed.