WASYLYNUK v BOUMA, 2018 ABQB 159
7.3: Summary Judgment (Application and decision)
The parties to the Action each applied for Summary Judgment regarding the validity of several testamentary documents including beneficiary designations, Wills, and a deed of gift, all executed by the deceased testator. The Case Management Judge had directed that the Defendants’ Summary Judgment Application proceed and that the Judge hearing the Application was entitled to either declare the validity of the instruments at issue, or direct that their validity be determined at Trial. The Plaintiff’s Application for Summary Judgment was adjourned sine die.
Justice Nielsen confirmed that for Summary Judgment to be appropriate, the existing record must enable a disposition that is fair and just to the parties, recognizing that the process should be proportional to the dispute. Justice Nielsen summarized the circumstances in which Summary Judgment will be appropriate as follows: the process will 1) allow the Judge to make the necessary findings of fact; 2) allow the application of the law to the facts; and 3) be proportionate, more expeditious and less expensive means to achieve a just result. The moving party must establish that there is no issue regarding a potentially decisive and material fact which cannot be found against the non-moving party on the basis of a fair and just summary process. The mere assertion by the non-moving party that further evidence could be presented at Trial is not sufficient to resist a Summary Judgment Application.
Extensive documentary evidence was put before the Court including several Affidavits, the transcripts of examinations from several further witnesses, and two Expert Reports.
Justice Nielsen held that the case was appropriate for a Summary determination, noting that the facts were not complex and the law concerning the validity of the instruments at issue was clear. Justice Nielsen also found that the Plaintiff had the opportunity to, and did, make best efforts to establish an evidentiary foundation upon which to challenge the validity of the various instruments. Notwithstanding those efforts, Justice Nielsen held that there was insufficient evidence to support the Plaintiff’s claims and it was not likely that a Trial of the matter would furnish further evidence. The Defendants’ Application for Summary Judgment was granted.View CanLII Details