Ostrowercha et al. v. 776826 Alberta Ltd. et al.,

• Judge: Paperny, Watson and Brown, JJ.A.
• Neutral Citation: 2015 ABCA 49
• Citation: 2015 ABCA 49,(2015), 593 A.R. 391,593 AR 391,[2015] CarswellAlta 155,[2015] AJ No 118 (QL),[2015] A.J. No 118 (QL),593 A.R. 391,(2015), 593 AR 391
• Date: 02 February 2015
• Court: Court of Appeal (Alberta)

Ostrowercha v. 776826 Alta. Ltd. (2015), 593 A.R. 391; 637 W.A.C. 391 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.012

776826 Alberta Ltd., carrying on business under the trade names, causes and styles of Budweiser Motorsports Park, Bud Park Motor Sports and Castrol Raceway (appellants/respondent on cross-appeal/defendants) v. Dayna Lynn Ostrowercha and Her Majesty the Queen in Right of Alberta, as represented by the Minister of Health (respondents/appellant on cross-appeal/plaintiffs)

(1403-0256-AC; 2015 ABCA 49)

Indexed As: Ostrowercha et al. v. 776826 Alberta Ltd. et al.

Alberta Court of Appeal

Paperny, Watson and Brown, JJ.A.

February 2, 2015.

Summary:

The plaintiff was seriously injured at the defendants' park. She sued in negligence and under the Occupiers' Liability Act. The defendants' application under rule 7.3(1) for summary judgment to dismiss the action on the basis that there was no genuine issue requiring a trial was dismissed. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The plaintiff was seriously injured at the defendants' park - She sued in negligence and under the Occupiers' Liability Act - The defendants' application under rule 7.3(1) for summary judgment to dismiss the action on the basis that there was no genuine issue requiring a trial was dismissed - The Alberta Court of Appeal dismissed the defendants' appeal, finding no abuse of discretion nor palpable and overriding error by the chambers judge - While the culture shift toward using alternative but fair and just methods of adjudication was well established in Alberta, front line judges were entitled to deference on their decisions as to whether summary judgment under rule 7.3 was a fair and appropriate means for adjudication - Appeals from denials of motions for summary judgment were difficult to establish - From the process perspective, summary judgment could be given if a disposition that was fair and just to both parties could be made on the existing record - From the substantive perspective, summary judgment could be granted if, in light of what that fair and just process revealed, the claim had no merit - For the non-moving party's case to have merit, there had to be a genuine issue of a potentially decisive material fact in the case which could not be summarily found against the non-moving party on the record revealed by the "fair and just process" - The key was whether the proper resolution of the case required viva voce evidence.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See Practice - Topic 5702 ].

Cases Noticed:

W.P. et al. v. Alberta et al. (2014), 588 A.R. 110; 626 W.A.C. 110; 2014 ABCA 404, refd to. [para. 7].

Balogun v. Pandher (2010), 474 A.R. 258; 479 W.A.C. 258; 2010 ABCA 40, refd to. [para. 7].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 2014 ABCA 108, refd to. [para. 9].

Sherwood Steel Ltd. v. Odyssey Construction Inc. (2014), 59 C.P.C.(7th) 22; 2014 ABCA 320, refd to. [para. 9].

Maxwell v. Wal-Mart Canada Corp. et al. (2014), 588 A.R. 6; 626 W.A.C. 6; 2014 ABCA 383, refd to. [para. 9].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 9].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 11].

Ernst v. EnCana Corp. et al. (2014), 580 A.R. 341; 620 W.A.C. 341; 85 C.E.L.R.(3d) 39; 2014 ABCA 285, refd to. [para. 12].

Counsel:

G.T. Lund, for the appellants/defendants;

K.P. Feehan, Q.C., and A.P. Walsh, for the respondents/plaintiffs.

This appeal was heard and determined from the bench on February 2, 2015, by Paperny, Watson and Brown, JJ.A., of the Alberta Court of Appeal. On February 4, 2015, the court released the following memorandum of judgment.