The Defendant, Louis Joseph Albinati (“Albinati”), applied for Summary Dismissal of a claim initiated by Studio Homes Ltd. (“Studio”). There was also an Application for Summary Dismissal of the claims against the other Defendants, Signature Land Corp., Kevin Szakacs and Darrel Gunderson (the “Other Defendants”). The dispute in this case arose from an Agreement for Sale between Albinati and a company called Elaborate Developments Inc. (“Elaborate”), whereby Albinati sold a portion of land to Elaborate. Elaborate experienced financial difficulties and subsequently signed a Quit Claim and Settlement Agreement with Albinati to void the Agreement for Sale. Elaborate filed for bankruptcy and negotiated a Consent Order with the Receiver to transfer Elaborate’s land claims to Studio.

The Court first considered the validity of each claim raised by the Plaintiff, Studio. Master Wacowich was not satisfied that there was no possibility that Studio had a claim against the Other Defendants and held that the issues in the claim could only be determined through Questioning pursuant to the Rules. The Court added that these issues may have been resolved at this stage if Affidavits had been filed by the Other Defendants, but as none had been provided they could not be used to settle the Application. The only Defendant to provide evidence was Albinati and the Court was satisfied on his evidence that Studio’s claim against Albinati should be dismissed.

Following this determination, Master Wacowich considered the role of evidence generally as it related to an Application for Summary Judgment. There was a question raised as to whether an adverse inference should be drawn from a failure of the Other Defendants to give evidence. Master Wacowish noted that there was no onus on a party to give evidence under Rule 7.3, but referenced Grivicic v Alberta (Health Services), 2014 ABQB 444 (CanLII), in which Master Prowse held that the Defendant bore the initial burden of establishing that it was plain and obvious that the Plaintiff could not succeed. Once this was established, the burden shifted to the Plaintiff to demonstrate that there was a triable issue. The Court also noted that Hryniak v Mauldin, 2014 SCC 7 (CanLII) required adjudicators to examine the evidence even when there was conflicting evidence. In this case, because the Plaintiff positively deposed that there was a conspiracy claim between the Defendants, and there was evidence to support portions of this allegation, the onus switched to the Defendants to put forward evidence to demonstrate that there was no merit to the Plaintiff’s claim. Without any evidence from the remaining Defendants, the Plaintiff’s evidence was sufficient to show merit to the claim at this juncture.