5.31: Use of transcript and answers to written questions
6.6: Response and reply to application
6.7: Questioning on affidavit in support, response and reply to application
7.3: Summary Judgment (Application and decision)
13.6: Pleadings: general requirements

Case Summary

Two of the Defendants applied for leave to Amend their Statements of Defence to plead the Limitations Act, RSA 2000, c L-12, and, if the amendment Application was granted, for Summary Dismissal of the Plaintiff’s Claim. The parties agreed that the amendments need only cross a low bar, but that they should not be allowed if they cause the party opposite prejudice which cannot be compensated by Costs, or if the proposed amendments are hopeless. The parties also agreed, with respect to Summary Judgment, that there has been a shift in the legal culture which now supports the granting of Summary Judgment in situations where uncontroverted evidence establishes that there is no genuine issue for Trial.

The Defendants objected to the filing of an Affidavit by Weatherford because it was filed after the parties’ written briefs had been filed. Justice Veit allowed the Affidavit in question stating that there were procedural uncertainties including whether the Defendants were applying only to amend their Statements of Defence, or whether the Application for Summary Judgment would be included in the Application as well. The Defendants also objected, pursuant to Rule 5.31(2), to Weatherford’s use of portions of the transcript of Questioning of one of its own witnesses. Veit J. noted that Weatherford could not use its own witness’s Questioning evidence in a self-serving way. However, in this case, it was entitled to ensure that any excerpt from its witness’ evidence constituted a fair representation of that witness’ evidence. The Defendants also objected, pursuant to Rule 6.7, to Weatherford’s use of excerpts from the transcripts of cross-examination on Affidavit by Weatherford’s affiant. Justice Veit held that the use of this evidence was used to ensure that a fair representation of that witness’ evidence was before the Court.

The parties also disagreed on whether laches and acquiescence could be raised without having been pleaded. Justice Veit noted that the requirement of Pleadings is to state the facts, not to state the law. Her Ladyship also noted that Rule 13.6(3) lists a number of arguments that must be pleaded if a party wishes to rely on them at Trial. The list does not include laches and acquiescence.

With respect to Summary Judgment, Veit J. commented that the parties are required to put their best foot forward, and the Court is entitled to, and should, grant the Application if it can fairly do so on the basis of the material put forward, without requiring a Trial.

Veit J. allowed the amendment to the Statement of Defence, and concluded that there was no genuine issue for Trial, given that the limitations issue could be fairly decided on the basis of the evidence before the Court. Her Ladyship granted the Defendants’ Summary Judgment Application accordingly.

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