The Plaintiff commenced an Action against the Defendants alleging that a fire in their multi-residential building was a result of the Defendants’ negligence in constructing the building. The Defendants applied for Summary Dismissal of the Action pursuant to Rule 7.3(1)(b), on the basis that the Plaintiff’s claim was barred by a contractual waiver, and by virtue of the Limitations Act, RSA 2000, c L-12. Justice Goss observed that, in Alberta, a Defendant may apply for Summary Judgment on the ground that there is no merit to the claim or part of it.

Goss J. considered prior authority, and noted that the test for a Summary Judgment Application pursuant to Rule 7.3(1)(b) had recently changed due to the Supreme Court of Canada decision in Hryniak v Mauldin, 2014 SCC 7. The more recent test adopted by the Alberta Court of Appeal, following Hryniak, encouraged the Court to take a more holistic view on whether the claim had merit, and Rule 7.3 “is not confined to the test of ‘a genuine issue for trial’ found in the previous rules”. Nevertheless, Her Ladyship held that the bar remains high on a motion for Summary Judgment, and the onus remains with the applicant to establish that there is no merit to a claim. If the applicant discharges their burden, the onus then shifts to the respondent to show that there is arguable merit to the claim. There is no genuine issue requiring Trial only where the Court is able to make the necessary findings of fact and has the ability to apply the law to the facts.

Justice Goss denied the Application for Summary Judgment because there were genuine issues for Trial in relation to both the claim for negligent misrepresentation, as well as with respect to Section 7(2) of the Limitations Act.