Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises and Gauthier et al., (1977) 2 A.R. 166 (CA)

• Judge: McGillivray, C.J.A., Prowse and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 19, 1977
• Citations: (1977), 2 A.R. 166 (CA)

Pacific Western Airlines v. DEEL Ent. (1977), 2 A.R. 166 (CA)

MLB headnote and full text

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

Indexed As: Pacific Western Airlines Ltd. v. D.E.E.L. Enterprises and Gauthier et al.

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Prowse and Haddad, JJ.A.

January 19, 1977.

Summary:

This case arose out of an action commenced against the defendants as makers of several cheques. The defendants were two individuals and a business firm. The individual defendants signed the cheques below the name of the business firm. One of the individual defendants filed a statement of defence which alleged that she signed the cheques in a representative capacity. The plaintiff applied for a summary judgment pursuant to Rule 159 of the Alberta Rules of Court. The application was granted.

On appeal to the Alberta Court of Appeal the appeal was allowed and the summary judgment in favour of the plaintiff was set aside. The Alberta Court of Appeal held that the plaintiff's application for a summary judgment against all defendants should be dismissed because the issue of the liability of one of the defendants was not beyond doubt.

Practice - Topic 5705

Judgments - Summary judgments - Alberta Rules of Court, Rule 159 - Requirement that question at issue be beyond doubt - The plaintiff as payee sued the defendants as makers of several cheques - The defendants were two individuals and a business firm - The individual defendants signed the cheques below the name of the business firm - One of the individual defendants filed a statement of defence which alleged that she signed the cheques in a representative capacity - The Alberta Court of Appeal held that the plaintiff's application for a summary judgment against all defendants should be dismissed because the issue of the liability of the individual defendants was not beyond doubt.

Cases Noticed:

Cerny v. Canadian Industries Ltd. et al., [1972] 6 W.W.R. 88; (1973), 30 D.L.R.(3d) 462, folld. [para. 6].

Daymond Motors Limited v. Thistletown Developments Limited et al., [1956] O.W.N. 867, refd to. [para. 7].

Alliston Creamery v. Grosdanoff and Tracy (1962), 34 D.L.R.(2d) 189, refd to. [para. 7].

Beaver Lumber Limited v. Dennis and Dennis Sawmills Limited (1963), 41 W.W.R. 570, refd to. [para. 7].

Glatt et al. v. Ritt, [1973] 2 L.R. 447, refd to. [para. 7].

H.B. Etlin Co. Ltd. v. Asselstyne (1962), 34 D.L.R.(2d) 191, refd to. [para. 8].

Fairfield et al. v. Ferguson and Nolan (1892), 21 S.C.R. 484, refd to. [para. 9].

Medic v. Taylor, [1975] 6 W.W.R. 725, refd to. [para. 11].

Albert Pearl (Management) Limited v. J.D.F. Builders Limited, 3 N.R. 215; 49 D.L.R.(3d) 422, refd to. [para. 12].

Statutes Noticed:

Rules of Court (Alta.), rule 159 [para. 1].

Counsel:

P. McAllister, for the appellants;

John D. Rooke, for the respondent.

The judgment of the Alberta Court of Appeal was delivered by McGILLIVRAY, C.J.A., at Calgary, Alberta on January 19, 1977.