Jager Industries Inc. v. Canadian Occidental Petroleum Ltd. et al.,

• Judge: Rooke, J.
• Neutral Citation: 2000 ABQB 592
• Date: 21 August 2000
• Court: Court of Queen's Bench of Alberta (Canada)

Jager Ind. v. Cdn. Occidental Petroleum (2000), 273 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. SE.040

Jager Industries Inc. (plaintiff) v. Canadian Occidental Petroleum Ltd. and Petrogas Processing Ltd. (defendants/respondents) and Daon Development Corporation, Qualico Developments Ltd., Carma Developers Ltd. and Glenayre Technologies Inc. (formerly known as Nu-West Development Corporation Ltd.)

(third party/applicants)

(Action No. 9801-06451; 2000 ABQB 592)

Indexed As: Jager Industries Inc. v. Canadian Occidental Petroleum Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

August 21, 2000.

Summary:

The third parties applied for a summary judgment to dismiss the third party notice issued against them by the defendants.

The Alberta Court of Queen's Bench allowed the application.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available - Third parties sought a summary judgment against the defendants solely on the basis that, even if the plaintiff was successful against the defendants, the defendants could not succeed on the third party notice - The Alberta Court of Queen's Bench allowed the application and held: (1) there was no principle in law or procedure that barred the third parties' right to seek a summary judgment here; (2) rule 159 of the Alberta Rules of Court, directly or by analogy, was available to challenge a third party notice; (3) a respondent in an application for summary judgment had to come forward with evidence to meet evidence by an applicant that there was no meritorious case to be argued (the respondent/defendants failed to do so here); (4) no "special circumstances" were, in law, required.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - Third parties applied for a summary judgment to dismiss the third party notice issued against them by the defendants - The Alberta Court of Queen's Bench allowed the application and accepted the five following propositions put forward by the applicants: (1) a respondent could not argue that a triable issue existed based upon facts or evidence not currently available but which could emerge at discovery or trial; (2) where an applicant showed that there were no facts in issue for trial, the respondent had to adduce evidence that it had a reasonable chance of success at trial; (3) to resist summary judgment, bare allegations of fact by the respondent were not sufficient; evidence which lent some support to the respondent's claims was needed; (4) it was appropriate to summarily dismiss a third party action for indemnity where the evidence showed that no claims were advanced in the plaintiff's pleadings which gave rise to an obligation to indemnify; and (5) a summary judgment application could be made at any time; there was no need for an applicant to await the outcome of examinations for discovery - See paragraphs 20 to 32.

Practice - Topic 5715.1

Judgments and orders - Summary judgments - Burden on respondent - [See Practice - Topic 5702 ].

Cases Noticed:

Western Canadian Place Ltd. et al. v. Con-Force Products Ltd. et al. (1997), 208 A.R. 179 (Q.B.), refd to. [para. 7].

Dechant v. McKechnie Agency Ltd. et al. (1999), 253 A.R. 14 (Q.B. Master), refd to. [para. 7].

Dilcon Constructors Ltd. v. ANC Developments Inc. (1994), 155 A.R. 314; 73 W.A.C. 314 (C.A.), refd to. [para. 11].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1996), 181 A.R. 161; 116 W.A.C. 161; 38 Alta. L.R.(3d) 97 (C.A.), consd. [para. 13].

Northland Bank (Liquidation) et al. v. Willson et al. (1998), 233 A.R. 341 (Q.B.), refd to. [para. 15].

Cantafio et al. v. St. Hilaire (1999), 249 A.R. 172 (Q.B.), consd. [para. 15].

PWA v. Gauthier - see Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises and Gauthier et al.

Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises and Gauthier et al. (1977), 2 A.R. 166; 2 Alta. L.R.(2d) 52 (C.A.), not folld. [para. 20].

Suncor Inc. v. Canada Wire and Cable Ltd., [1993] 3 W.W.R. 630 (Alta. Q.B.), consd. [para. 22].

Royal Bank of Canada v. McLean (1997), 211 A.R. 297 (Q.B.), affd. (1998), 216 A.R. 172; 175 W.A.C. 172 (C.A.), consd. [para. 24].

Tuscon Properties Ltd. v. Sentry Resources Ltd. and Fournel (1982), 39 A.R. 241; 22 Alta. L.R.(2d) 44 (Q.B. Master), consd. [para. 25].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, consd. [para. 29].

Guarantee Co. of North America v. Gordon Capital Corp. (1999), 247 N.R. 97; 126 O.A.C. 1 (S.C.C.), consd. [para. 29].

Korte et al. v. Deloitte Haskins & Sells et al. (1993), 135 A.R. 389; 33 W.A.C. 389 (C.A.), consd. [para. 31].

Board of Education of Wild Rose School Division No. 66 v. Pratch (Bert) Construction Co. et al. (1998), 238 A.R. 339 (Q.B.), refd to. [para. 31].

Greene v. Field Atkinson Perraton et al., [1999] A.R. Uned. 205 (Q.B. Master), refd to. [para. 36].

Gertson v. Toronto (City) (No. 2) (1973), 43 D.L.R.(3d) 504 (Ont. H.C.), refd to. [para. 44].

Caledonia (E.E.) Ltd. v. Orbit Valve Co., [1995] 1 All E.R. 174 (C.A.), refd to. [para. 44].

Smith v. South Wales Switch Gear, [1978] 1 All E.R. 18 (H.L.), refd to. [para. 44].

V.A.H. v. Lynch et al. (2000), 255 A.R. 359; 220 W.A.C. 359 (C.A.), refd to. [para. 68].

Counsel:

Judson E. Virtue, for the plaintiff;

Bernadette Alexander and Samantha Wahl-Hrdlicka, for the defendants;

Peter S. Leveque, for the third party, Qualico Developments Ltd.;

Peter S. Jull, Q.C., for the third party, Carma Developers Ltd.;

David T. Madsen, for the third party, Glenayre Technologies Inc.

Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, heard this application and delivered the following reasons for judgment on August 21, 2000.