One of the Defendants, First Capital (Eastview) (“First Capital”) appealed the Decision of a Master who had granted Summary Dismissal of the Plaintiff’s claims as against the Defendant, Sobeys Capital Incorporated (“Sobeys”). First Capital also applied for leave to file Notice to Co-Defendant and/or a Third Party Claim against Sobeys as well as against the other Co-Defendants, Chris Martin (“Martin” ) and Kyle Stevens (“Stevens”).

Hopkins J. considered Rule 7.3 and recent authority, and outlined the principles which are applicable in a Summary Judgment Application:

A. Summary Dismissal can be granted if a disposition that is fair and just to both parties can be made on the existing record.

B. Summary Dismissal can be granted where there is no merit to the claim. To have merit, there must be a genuine issue of a potentially decisive material fact.

C. There is no genuine issue requiring a trial when the fair and just process allows for the necessary findings of fact and allows the law to be applied to the facts in a proportionate, expeditious and less expensive manner that achieves a just result.

D. The key is whether the circumstances require viva voce evidence in order to properly resolve the case, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily.

E. The Respondent must put its best foot forward at the Summary Dismissal application.

Justice Hopkins also noted that Summary Judgment is appropriate when the “non-moving party’s position is without merit”. His Lordship allowed the Appeal of the Master’s Decision on the grounds that Sobeys had failed to show that the Plaintiff’s claims against it were without merit as required by Rule 7.3. Sobeys’ status in the Action was as an occupier for the purposes of the Occupier’s Liability Act RSA 2000, c O-4, and its common law obligations to the Plaintiff remained in dispute based on the existing record.

Hopkins J. also granted First Capital leave to file Notice to Co-Defendant and/or a Third Party Notice against Sobeys. Despite the fact that the filing deadlines required by Rules 3.43 and 3.45 had been missed, the length and reason for the delay was held to be reasonable, and His Lordship determined that Sobeys would not suffer any prejudice as a result of the late filing.

However, Hopkins J. denied First Capital’s Application for leave to file Notice to Co-Defendant and/or Third Party Notice against the other Co-Defendants, Martin and Stevens. No reason was provided for the delay in filing against Martin and Stevens. Justice Hopkins held that Martin and Stevens would suffer significant prejudice if leave was granted as neither individual had been served with the Application.