Master Wacowich

3.65: Permission of Court to amendment before or after close of pleadings
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants, David Hamilton Architect Ltd. and David Hamilton (the “Hamiltons”), applied for Summary Judgment to dismiss the Plaintiff’s claim. The Plaintiff cross-applied to amend the Statement of Claim to include particulars of the allegations against the Hamiltons. The Action involved a building deficiency claim relating to the restoration of a condominium complex damaged by fire.

Master Wacowich noted that amendments after the close of pleadings are governed by Rule 3.65, which provides the Court broad discretion to amend. The classic rule is that an amendment should be allowed no matter how careless or late, unless there is prejudice which cannot be compensated by costs. The discretion to allow amendments should be exercised generously, allowing amendments that raise even doubtful pleas, so long as it is arguable. The Court should consider whether an amendment is disallowed because it is hopeless. Master Wacowich observed that, in this case, the amendments sought would be hopeless if the Summary Judgment Application was granted.

Master Wacowich stated that the key points to be considered on an Application for Summary Judgment were set out by the Court of Appeal in 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49. Procedurally, Summary Judgment should only be given if a disposition that is fair and just to both parties can be made on the existing record. Substantively, Summary Judgment can be granted where there is no merit to the Claim. No merit means that, even assuming the accuracy of the position of the non-moving party, the non-moving party’s position has no merit in law or fact. In order for the non-moving party’s case to have merit, there must be a genuine issue of potentially decisive material fact which cannot be summarily found against the non-moving party on the existing record. The assertion by a non-moving party that something will turn up at Trial does not suffice. The key is whether the circumstances require viva voce evidence in order to properly resolve the case.

On the present Application, Master Wacowich stated that the only disputed issues were matters of basic contract law concerning the legal significance of undisputed facts. The disputed issues could be determined on the existing record. Master Wacowich held that there were several elements of a binding legal contract missing, and therefore no contract. As such, the Plaintiff’s claims were without merit and were summarily dismissed. With the claims summarily dismissed, the proposed amendments were held to be hopeless, and the Application to amend the Statement of Claim was dismissed.

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