DURI HOMES LTD v QUEST COATINGS LTD

The Defendant appealed the decision of a Master dismissing its Application for Summary Judgment. The Defendant sought Summary Judgment declaring that it was an unnamed insured under a builder’s risk insurance policy and, therefore, protected by a subrogation clause against any action by the Plaintiff or its insurer.

The Court confirmed that the applicable test for Summary Judgment was recently summarized in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49. MacLeod J. found that the Court could resolve the Action on a summary basis and allowed the Appeal. He rejected the Plaintiff’s argument that the Action involved a complex factual scenario with credibility concerns. The Court found that the Defendant had proven the facts on which it relied on a balance of probabilities, which were the core facts of the case. The Could also found that the Defendant had met its onus for summary judgment on a balance of probabilities, and there was no genuine issue requiring trial. The Court granted Summary Judgment and held that the Defendant was an unnamed insured under the builder’s risk policy.