Kirker j

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff commenced an Action alleging that the Defendants had breached a contract by failing to pay for services, and seeking payment for unpaid invoices. One of the Defendants filed a Counterclaim alleging that it was the Plaintiff who breached the contract, resulting in damages. When the Plaintiff applied to summarily dismiss the Counterclaim in Master’s Chambers, the Master held that the Counterclaim could not be determined summarily. The Plaintiff appealed.

Justice Kirker first noted that pursuant to Rule 6.14(3), an Appeal from a Master’s Order is an Appeal on the record, but additional evidence may be heard if the Appeal Judge considers it to be relevant and material. Her Ladyship also noted that an Appeal from a Master’s Order is heard de novo, on a correctness standard.

Justice Kirker then explained that an Action may be summarily dismissed pursuant to Rule 7.3(1)(b) where there is “no merit to a claim or part of it”. It is appropriate where there is no genuine issue requiring a Trial, meaning that the Court is able to make a fair and just determination of the merits of the claim on the motion record.

Her Ladyship then noted that the parties had been given the chance to provide additional submissions since the Court of Appeal’s five-member panel Decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII), was released. That Decision emphasized a “shift in culture” such that Trial should not necessarily be the Court’s default procedure where it is fair and just to determine a claim summarily. This will be the case where the Judge is able to “make the necessary findings of fact and apply the law … unless there is a substantive reason to conclude that summary disposition would not ‘achieve a just result’”.

Justice Kirker held that in this case, the Plaintiff asked the Court to make a number of factual findings which could not be established on a balance of probabilities. Factual uncertainty remained which required “a more complete picture than the information in the motion record offers” to be clarified. As such, the matter was not appropriate for summary determination and the Appeal was dismissed.

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