UNION SQUARE APARTMENTS LTD v ACADEMY CONTRACTORS INC (ABALON CONSTRUCTION), 2016 ABQB 575
3.13: Questioning on affidavit and questioning witnesses
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
13.6: Pleadings: general requirements
13.7: Pleadings: other requirements
The Defendants appealed a Master’s Decision dismissing their Application for Summary Judgment where the Defendants alleged that the Plaintiff’s claim was statute barred by the Limitations Act, RSA 2000, c L-12 (s.3). The contested issue before the Master, and on Appeal, was whether the ultimate limitation period was suspended due to the Defendant’s fraudulent concealment of a defect in the building purchased by the Plaintiff.
The Plaintiff produced a secretarial Affidavit as additional evidence in support of the Appeal. The Affidavit was sworn to by the Plaintiff’s lawyer’s legal assistant, and attached an expert’s report. Rule 6.14(3) allows the Court to consider additional evidence on an Appeal from a Master to a Judge if the presiding Judge considers the evidence relevant and material. Justice Topolniski found that the expert report did not address the issue of whether the Defendant fraudulently concealed the defects complained of by the Plaintiff, and as such, it was not relevant and material.
Justice Topolniski also held that the use of a secretarial Affidavit in these circumstances was inappropriate, highlighting that under Rule 13.18, Affidavits may only be sworn based on the personal knowledge, or information and belief of the Affiant. Because Rule 3.13 restricts Questioning on the Affidavit to the Affiant, the Affiant must have some knowledge of the issues deposed to. The combined effect of these Rules, is that secretarial Affidavits are generally only appropriate where the clerical staff actually has personal knowledge of the matters deposed, and documents exhibited.
Topolniski J. described the focus of the Court in a Summary Dismissal Application requiring a “holistic analysis of whether the claim has merit”. A claim is without merit if the facts and law make the moving party’s position unassailable, meaning, the likelihood of success at Trial is “very high”. On a Summary Dismissal Application the Court is also to consider its obligation to resolve a legal dispute in the most cost-effective and timely method available, provided the process still ensures fairness between the parties.
In considering the merits of the Appeal, Justice Topolniski held that the existing record did not disclose fraudulent concealment on the part of the Defendant which would suspend the running of the ultimate limitation period. Accordingly, the ultimate limitation period had passed, and the Defendants were entitled to an affirmative defence. The Appeal was allowed with costs to the Defendants for the Appeal and the hearing before the Master.View CanLII Details