SIM v DUBEY

This was an Appeal by vendors from the Decision of Justice McCorquodale refusing Summary Dismissal of the purchaser’s claims for negligent and fraudulent misrepresentation arising from the sale of a condominium unit. Justice Jugnauth dismissed the Appeal, and left the misrepresentation claims to proceed to trial.

The Court noted that Applications for Summary Dismissal are governed by Rules 7.2 and 7.3 and applied the framework set out in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49. Justice McCorquodale summarily dismissed a claim for unjust enrichment, but refused to summarily dismiss the negligent and fraudulent misrepresentation claims.

On appeal, the Court accepted that Justice McCorquodale correctly articulated the test for Summary Dismissal under Rules 7.2 and 7.3. The Court upheld the conclusion that there were genuine issues requiring a trial, including the vendors’ state of knowledge about condominium fees and any special assessments, and whether the vendors’ statements regarding special assessments were misleading, made recklessly, or made with knowledge.

The Court also addressed objections from the vendors to the purchaser’s Affidavit evidence as hearsay or speculative, noting the vendors reliance on Rule 13.18 and section 36 of the Court of Justice Act, RSA 2000, c C-30.5. It declined to interfere with Justice McCorquodale’s exercise of discretion in admitting and weighing the evidence. The Appeal was dismissed, with Costs to the purchaser in accordance with Schedule C.