The Plaintiff simultaneously applied for Summary Judgment of their claim against the Defendant, and to either summarily dismiss the Defendant’s Counterclaim, or for the Counterclaim to be struck. The Action pertained to a dispute over a royalty agreement between the Parties whereby the Defendant gained the right to excavate lands owned by the Plaintiff and sell aggregate in exchange for royalty payments. The Defendant claimed the lands in question were exhausted and ceased operations.

The Plaintiff commenced the Action alleging unpaid royalties and that the Defendant had breached the royalty agreement. The Court reviewed the applicable case law for Summary Judgment and contractual interpretation. An important issue raised by the Defendants was the ambiguity of the contractual terms and definitions, and how those definitions pertained to the requirement on the Defendant to undertake further excavation if the lands were found to be exhausted. Justice Harris found that the breaches alleged by the Plaintiff were based on vague and ambiguous contractual terms, and that the Defendant had raised triable issues with respect to the economics of continued operations. Additionally, contrary to Rule 13.18(3), the Plaintiff had filed affidavits from a variety of individuals who were attesting to events that they had no direct involvement with and could not be said to contain their “personal knowledge”.

With respect to the Defendant’s Counterclaim, the Court noted that it was unclear if the Plaintiff was applying to strike the Defendant’s pleading pursuant to Rule 3.68 for failing to include particulars of their claims of misrepresentation, or to have the Counterclaim summarily dismissed. Regardless, the Court determined that any deficiencies in the Defendant’s Counterclaim could be easily rectified and that the Counterclaim raised triable issues.

As such, the Plaintiff’s Application for Summary Judgment was dismissed, as was their Application to strike or dismiss the Defendant’s Counterclaim.