WHITECOURT POWER LIMITED PARTNERSHIP v INTERPRO TECHNICAL SERVICES LTD, 2014 ABQB 135
1.2: Purpose and intention of these rules
3.44: When third party claim may be filed
3.45: Form of third party claim
7.3: Summary Judgment (Application and decision)
7.5: Application for judgment by way of summary trial
9.15: Setting aside, varying and discharging judgments and orders
The Plaintiff (“Whitecourt”) commenced an Action against the Defendant (“Interpro”) alleging Interpro caused losses due to repairs it made to Whitecourt’s turbine/generator. Almost two years after Whitecourt filed its Reply to Interpro’s Statement of Defence, Interpro filed a Third Party Claim against Elliott Turbo Machinery Canada Inc. (“Elliott”). Elliott applied to set aside the Third Party Claim or alternatively for Summary Dismissal of the Third Party Claim. Elliott argued that, pursuant to Rule 3.45, Interpro should have filed and served a Third Party Claim against Elliott within six months of filing its Statement of Defence. Although Interpro’s Third Party Claim was filed outside of this period, Interpro had obtained an Order to extend the time to file and serve its Third Party Claim. Master Mason declined to set aside the Order, holding that Elliott had not demonstrated prejudice due to the extension of time since Elliott had received notice of the Order.
Master Mason considered Rule 7.3, stating that the onus is on the party bringing a Motion for Summary Judgment to show “no genuine issue for trial”, and that the Court will consider all the evidence to determine whether the Applicant has discharged that onus. Master Mason expressed the test for Summary Judgment as being “plain and obvious or beyond doubt that the claim cannot succeed”. Further, if the evidence must be assessed and weighed by a Master or Justice in Chambers, the “plain and obvious” or “beyond doubt” test has not been met. Master Mason considered how Hryniak v Mauldin, 2014 SCC 7 should apply in Alberta, and held that, unlike the Ontario Summary Judgment Rule considered by the Supreme Court, Alberta’s Rule 7.3 does not permit the Court to weigh evidence to resolve disputed questions of fact. Master Mason concluded that the Supreme Court of Canada’s statement with respect to courts being permitted to find the relevant facts was applicable to Summary Trials under Rule 7.5. Master Mason observed that civil procedures must be proportional to the Claim. Proportionality is codified by Rule 1.2, which is the lens through which courts must interpret the Rules, including Rule 7.3.
Master Mason held that, pursuant to Rule 3.44, Interpro’s Third Party Claim alleging Elliott to be liable to Interpro for Whitecourt’s Claim was a claim for contribution. This portion of the Claim was summarily dismissed pursuant to the Tort-Feasors Act, RSA 2000 c T-5. Master Mason held that, other than the portion of Interpro’s Third Party Claim for contribution, the parties had outstanding factual disputes to be determined at Trial.View CanLII Details