master wacowich

7.2: Application for judgment
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants applied for Summary Judgment to dismiss the Action against them, arguing that the Action should not go to Trial because none of the Plaintiffs had a right to sue. The first Plaintiff, Proflex, was a non-entity, as it was dissolved by the Registrar and struck from the Corporate Registry two years prior to the issuance of the Statement of Claim. Master Wacowich stated that an Action commenced by a corporation that had been struck is a nullity and an abuse of process, unless that corporation revives itself. Proflex was out of time to revive itself, and therefore, did not have the right to sue. Master Wacowich held that the second Plaintiff, Composite Technologies Inc., had transferred all of its interest in the subject matter of the Claim to Proflex. The remaining Plaintiff was a shareholder and did not have a separate or distinct Claim that would give rise to a cause of Action.

Master Wacowich reviewed recent leading authorities which considered Summary Judgment including the most recent Court of Appeal decision, 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 (CanLII), and stated that Summary Judgment is appropriate where there is no merit to the Claim. Master Wacowich adopted the Court of Appeal’s statement that:

… in order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the “fair and just process”. The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice. The key is whether the circumstances require viva voce evidence in order to properly resolve the case …

Master Wacowich held that there was no issue of merit that genuinely required a Trial. Master Wacowich granted the Defendant’s Application, summarily dismissing the Action in its entirety.

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