WHITECOURT POWER LIMITED PARTNERSHIP v ELLIOTT TURBOMACHINERY CANADA INC, 2015 ABCA 252
PAPERNY and ROWBOTHAM JJA and EIDSVIK J (Ad HOC)
3.45: Form of third party claim
7.3: Summary Judgment (Application and decision)
The Defendant, Elliott Turbomachinery Canada Inc., sought Summary Dismissal of a Third Party Claim issued against it on the basis of two defences: 1) a contractual liability exclusion clause; and 2) the Third Party Claim was statute barred by the Limitations Act, RSA 2000, c L-12. The Application was dismissed by both a Master and then a Justice of the Court of Queen’s Bench. The Defendant then appealed to the Court of Appeal.
The Court noted that Decisions to grant or deny Summary Judgment involve an exercise of discretion. As such, these Decisions are entitled to deference. Practically speaking, this means that Appeals from denials of motions for Summary Judgment will be difficult to establish.
Considering the contractual defence claim, the Court reviewed the Chambers Judge’s conclusion that Summary Judgment was inappropriate because there were multiple parties with no written contract, which would require a Court to discern from the evidence whether there was in fact a contract, who the parties to it were, and its precise terms. The Court found that the Chambers Judge weighed the evidence and found that these were issues of genuine merit requiring Trial. The Court noted that it was not their place to re-weigh the evidence, and found that there was no reviewable error. As such, they dismissed this ground of Appeal.
With respect to the limitations defence, the Court affirmed the Chambers’ Judges’ decision that, due to unclear evidence, there remained issues of merit which genuinely required a Trial.
The Defendant also sought to strike the Third Party Claim on the grounds that it was not filed and served within six months of filing the Statement of Defence as required by Rule 3.45. The Plaintiff by Third Party Claim had, however, applied, on notice to the Defendant, for an Order extending the time for filing its Third Party Claim. The Defendant chose not to attend or contest the Application. Because of this, the Master and Chambers Judge declined to set aside the Third Party Claim and the Court of Appeal found no reviewable error. The Appeal was dismissed.View CanLII Details