A Scant Evidentiary Record May Delay a Determination of the Issues

In Mead v. Burton, 2022 ABQB 94, the Court examined whether a testator’s intention regarding the deposition of farmland could be determined by summary judgment.

The testator, Bud, owned farmland. In a letter, Bud indicated that, upon his death, his intention was the farmland be held in a trust by his wife for the ultimate benefit of his grandchildren. However, prior to his death, Bud transferred title of the farmland to his wife in joint tenancy; meaning that upon his death Bud’s wife became the sole owner of the farmland through right of survivorship.

Bud’s wife argued that her husband had intended to gift her the farmland. Bud’s grandchildren argued the farmland belonged to them by way of a resulting trust. Bud’s wife brought a partial summary judgment application claiming the farmland was not subject to a resulting trust and belonged to her outright after Bud’s death.

When faced with a summary judgment application, the Court must determine whether the evidentiary record available is sufficient to determine the issues before the Court rather than based on speculation on what potential evidence may “turn up in the future” or whether a party could produce a better evidentiary record if the matter were to proceed to trial.

The Court also held there are four questions which must be considered when determining whether a summary judgment is appropriate:

• Can the Court fairly resolve the dispute on a summary basis notwithstanding the conflicting evidence before it?
• Has the Applicant satisfied the Court the opposing party has no defence and there is no genuine issue that requires a trial?
• Has the Respondent demonstrated there is a genuine issue that requires a trial?
• Does the state of the evidentiary record give the Court sufficient confidence a summary judgment is appropriate given the circumstances?

In this case, the evidentiary record was scant – two of the three people who claimed to have evidence about Bud’s intention regarding the farmland did not actually provide Affidavit evidence and the other refused to provide evidence when requested by the Court. The parties argued the issue of who Bud intended to receive the farmland could be determined without evidence from these individuals, due to certain presumptions at law (at law, presumptions are helpful where there is no evidence).

Given there was a possibility of obtaining evidence in this case, the Court held that “further and better evidence will be available at trial.” The Court dismissed the application for summary judgment and directed Bud’s intention regarding the farmland to be determined at trial.

This case provides an example of when a summary judgment might not be appropriate. If you have questions regarding whether a summary judgment application is appropriate for your matter, contact one the lawyers at Kantor LLP. We are happy to answer any questions.