Islam v. Mozumder, 2012 ABQB 773

Court of Queen ’ s Bench of Alberta Citation: Islam v. Mozumder, 2012 ABQB 773 Date: 20121218 Docket: 1003 16889 Registry: Edmonton Between: Rafique M. Islam Plaintiff - and - Golam Kibria Mozumder Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Pursuant to the procedure established in Rule 7.8, Mr. Mozumder objects to the setting of a one-day

summary trial because the application for

summary trial filed by Dr. Islam does not allow sufficient time for trial of all of the issues raised by the defendant in his pleadings. [ 2 ] These proceedings are not suited to a

summary trial: by their actions to date in the proceedings, the parties themselves have established that they want and need an ordinary trial; although there is some documentary evidence of a debt, the resolution of the conflict between the parties will depend on a trial judge ’ s assessment of the credibility of the parties; and, if the defendant continues to pursue a defence based on cultural context, some evidence of that cultural overlay will have to be led and it is probable that the plaintiff

would wish to test any such evidence by cross-examination. In the result, this dispute will have to be resolved by way of a conventional trial rather than a

summary trial. [ 3 ] Although the parties want a traditional trial, they also wanted to be relieved of the obligation of having a JDR (judicial dispute resolution hearing) or similar pre-trial dispute resolution process.

In addition, they apparently also wanted relief from the obligations of complying with other requirements of Form 37 with respect to entering matters on the conventional trial list: identifying the witnesses expected to be called, estimating the length of trial, confirming that all questioning and amendments to pleadings have been completed, identifying judges who may be disqualified from hearing the trial, etc. There is no reason why the parties should be relieved of any of these obligations. [ 4 ] Mr.

Mozumder ’ s specific concern relating to the identification of the trial issues would have been addressed had the parties followed the normal Rule 8.4 procedure since both parties have to sign Form 37 as opposed to the situation arising under Form 36 where only the applicant is responsible for the content of the form. Moreover, had the parties followed the usual procedure, they would have had a trial considerably earlier than the trial which is now scheduled for March 2013. [ 5 ] Dr. Islam ’ s concern about the use by Mr.

Mozumder in the proceedings and at trial of confidential information stored on the Islam computer which Dr. Islam alleges was wrongly retained by Mr. Mozumder will be determined by the trial judge. [ 6 ] This application illustrates serious problems caused by new Rule 7.5. Form 36 does not always adequately identify the real issues in dispute because it is only the applicant for

summary trial who frames the issues rather than both parties as in Form 37. The one- step process is only potentially quick if both parties consent to a

summary trial and the judge agrees that a

summary trial is appropriate; where, as here, the respondent does not agree to a

summary trial, or where a judge determines that the matter is not suited to

summary trial, the eventual hearing of the dispute by way of a conventional trial is considerably delayed. A conventional trial which could have been heard in December 2012 under the previous rule can now only be heard in March, 2013. The one-step procedure does not encourage litigants to resolve their dispute since the

summary trial provisions do not require a JDR or similar alternate dispute resolution processes prior to trial. As this particular situation highlights, the one-step system does not provide an efficient system of remedies since the considerable costs to the defendant, and his lawyer, of attending for one day in Edmonton from Calgary may not be able to be recovered in costs. The one-step process is not efficient from the perspective of the court ’ s administration since one day of trial time is effectively lost where the parties do not agree to a

summary trial or the court determines that a

summary trial is not appropriate. Lastly, it contributes neither to the expectation of justice for the parties nor to the expected diligence of the judiciary to adopt a system in which the judge in a

summary trial is not provided in advance of what should be a short trial albeit with a considerable amount of affidavit evidence without any brief from the parties setting out what issues are contested and what treatment is requested of the issues. Our practice rules require a brief from the parties even for special chambers applications; the utility of a brief in advance of

summary trials, which will finally dispose of the dispute between the parties, is even more apparent. In

summary, the new Rule, which conflates the previous two-step system into one step, appears to undermine - rather than support - the purpose and intent of the new Rules as set out in Rule 1.2. Cases and authority cited [ 7 ] By the court: Ghermezian v Corey Development 2001 ABQB 914 , at para. 8 ; J.N. v G.J.K. 2004 ABCA 394 ; Bank of Montreal v Lysyk 2003 ABQB 186 ; N.V. Reykdal & Associates Ltd. v 571582 Alberta Ltd. 2000 ABCA 330 ; Dahl v Royal Bank of Canada 2005 BSCC 1263, affirmed, 2006 BCCA 369 ; Duff v Oshust 2005 ABQB 117 ; A.A. Fradsham, Alberta Rules of Court Annotated, 2012, at pa. 643 ff. Appendix A: Alberta Rules of Court relating to

Summary Trials Form 36 relating to the application for a

summary trial 1. Background [ 8 ] Dr. Islam issued a Statement of Claim on October 4, 2010, alleging that Mr. Mozumder borrowed $40,723.00 from him, signed promissory notes in 2005 and 2007 evidencing the loan, and has refused to repay the money notwithstanding a demand for such payment.

[ 9 ] In his Statement of Defence, filed in December 2012, Mr. Mozumder states that Dr. Islam, who is his grand-uncle, undertook to provide for him financially while Mr. Mozumder was in Canada on a student visa; Mr. Mozumder characterizes the $40,723.00 as a gift. Alternatively, he alleges in his statement of defence that he signed the promissory notes under duress (including the threat of deportation) and while subject to undue influence and that the plaintiff is estopped from demanding payment because the plaintiff did not provide sufficient financing for the defendant ’ s studies. Finally, Mr.

Mozumder pleads that because he is not currently eligible for a bank loan, the promissory notes have not become due. [ 10 ] The parties filed affidavits of record and completed questioning of one another. [ 11 ] Dr. Islam applied to a Master for

summary judgment. Apparently, that application was denied because the proceedings are ongoing. However, no form of order reflecting the Master ’ s decision was taken out; it is not clear on this application which party is at fault for failing to file such an order. Taking out such an order is not only good practice generally, it might have been particularly useful in the circumstances here where the Master may have made some comment about whether a

summary trial appeared to have been called for: Ghermezian . [ 12 ] The parties then obtained a court order allowing each of them to adduce viva voce evidence “ in addition to any other evidence they wish to adduce ” at trial. The trial referred to in the order is not explicitly a

summary trial. An order of this type would, however, be highly unusual in relation to a

summary trial since the distinguishing feature of a

summary trial is to depart from conventional trial practice in relation to the type of evidence called. [ 13 ] Next, the parties obtained an order relieving them of the obligation to engage in some type of pre-trial dispute resolution process; again, the reference to a trial in this order does not explicitly state that the trial will be a

summary trial. Indeed, if the parties were really expecting to have a

summary trial, an order relieving them of the obligation to have a JDR would be unnecessary since that pre-trial step is not required for a

summary trial: see Form 36. [ 14 ] Finally, on October 25, 2012, using Form 36, the plaintiff applied for a

summary trial. Under the procedure instituted by Rule 7.5, the civil trial coordinator set Monday, December 10, 2012 as the date on which a one day

summary trial would be held. Complying with Rule 7.8, 5 days or more before the scheduled

summary trial date, specifically on December 5, 2012, Mr. Mozumder filed a notice of objection to a

summary trial. [ 15 ] On December 10, 2012, I heard Mr. Mozumder ’ s objection to a

summary trial as a preliminary issue. His argument was that insufficient time had been set aside for the hearing of the

summary trial since the plaintiff ’ s outline of trial issues related strictly to the legal claims based on the documentation presented without referring to any of the equitable defences raised by the defendant in his pleadings. Moreover, since both the defendant and the defendant ’ s lawyer reside in Calgary, and since only one day was set for the

summary trial, the defendant was not able to remain in Edmonton even if a second day for trial could be arranged. [ 16 ] The court ordered the parties to obtain dates for a two day traditional trial; those dates are in March, 2013. The court then began an informal JDR (without pre-JDR conference, without briefs, without copies of the proposed trial evidence) which will comply with the requirement in the Rules for a pre-trial dispute resolution process; that process will be completed after counsel provide the JDR judge with any case law on which they intend to rely. 2. General principles relating to

summary trials [ 17 ] Alberta ’ s adoption, in 2010, of new Rules of Court has fixed a spotlight on the potential offered by

summary trials: Rule 1.2(1), a foundational rule, states that the purpose and intention of the new Rules is to resolve claims fairly and justly by way of a court process which is timely and cost-effective.

Summary trials, which by definition constitute a paring-down of the usual trial process, may - in some circumstances - be a mechanism for fulfilling the purpose and intention of the new Rules. [ 18 ] Moreover, there may be an increased interest in

summary trials because such trials do not require, as do conventional trials, any pre-trial attempt at settlement: see Form 36. Relief from that procedural step is a considerable advantage in our province where access to the free JDR system which does qualify as a pre-trial dispute resolution process is so heavily booked that trials can sometimes

be booked more quickly than a JDR. [19] In weighing arguments concerning whether particular proceedings are suited to the

summary trial process, a judge will takeinto account the purpose and intention of the Rules including the Rules relating to

summary trials. Judge Fradsham’s annotation ofAlberta’s Rules of Court provides extracts from many decisions, often issued under the previous Rules, about the type of case which issuited to a

summary trial. In J.N., our Court of Appeal referred to the general framework relating to

summary trials and how litigants andlawyers can begin their assessment of whether a

summary trial process is appropriate in their proceedings. In Lysyk, I expressed the viewthat British Columbia jurisprudence is particularly useful to Alberta lawyers and litigants in fleshing out the potential scope of

summarytrials. I continue to hold that view and note that our Court of Appeal in Reykdal also approved the approach of the B.C. courts. Relatively recently, in Dahl, we were provided with additional assistance in interpreting the landscape of

summary trials: 10 The test for granting

summary judgment is set out in Rule 18A(11). The court may grant judgment in favour of any party, either onan issue or generally, unless the court is unable to find the facts necessary to decide the issues of fact, or it would be unjust to decide theissues on the application. 11 In Inspiration Management Ltd. v. McDermid St.

Lawrence Ltd. (1989) (BC CA), 36 B.C.L.R. (2d) 202 (C.A.)the court set out a number of factors a judge should consider in determining whether determination pursuant to Rule 18A is appropriate,including: the amount involved, the complexity of the matter, the cost of a conventional trial in relation to the amount involved, and thecourse of the proceedings. 12 Cases since Inspiration Management set out additional factors that should be considered in deciding whether a matter is suitable fordetermination pursuant to Rule18A.

The additional factors trial judges take into account in determining whether a case is suitableinclude: * is the litigation extensive and will the

summary trial take considerable time; * is credibility a crucial factor - and have the deponents of the conflicting affidavits been cross examined; * will the

summary trial involve a substantial risk of wasting time and effort, and producing unnecessary complexity; and * does the application result in litigating in slices. Novin v. Novin, [2004] B.C.J. No. 2092 (C.A.); Bacchus Agents

(1981) Ltd. v. Philippe Dandurand Wines Ltd., [2002] B.C.J. No. 377,2002 BCCA 138. 13 A judge should not decide an issue if he or she will be required to make findings of fact that may embarrass the court hearing thesubsequent issues, i.e. when there are conflicts on the evidence concerning overlapping issues or where the judge hearing the subsequentpart of the case may have difficulty determining what issues remain live. Otter Farm and Home Cooperative v. Sekhon, 2001 BCCA636 , [2001] B.C.J. No. 2338 (C.A.) 14 Where there is an extensive overlapping of issues one issue ought not to be tried discretely on a

summary trial. Prevost (Committeeof) v. Vetter (2002), 2002 BCCA 202 , 210 D.L.R. (4th) 649 (B.C.C.A.) at 658; Kaba v. Cambridge Western Leaseholds Ltd.,[1997] B.C.J. No. 2152 (C.A.); Parsons v. Finch, [2003] B.C.J. No. 1647 (C.A.) 15 That is not to say issues cannot be isolated, however, trial judges must be cautious and ensure that the isolation of the issue willassist in the efficient resolution of the whole of the action, i.e. are the issues determinative or are they inextricably interwoven with theissues that must be determined at trial: British Columbia (Attorney General) v.

Perry Ridge Water Users Assn. (2003), 2003 BCCA 275, 13 B.C.L.R. (4th) 274 (C.A.). 16 In North Vancouver (District) v. Lunde (1998), (BC CA), 162 D.L.R. (4th) 402 (B.C.C.A.) the court held thatwhere an answer to an issue sought to be tried under Rule 18A will only resolve the whole proceeding if one answer is given, but not if adifferent answer is given, then the applicant should be required to demonstrate to the judge's satisfaction that the administration ofjustice, as it affects the parties to the motion and the orderly use of the court's time, will be enhanced by dealing with the issue as a

separate issue. The judge must consider whether a

summary trial is an effective use of court time and an efficient resolution of theproceeding. The court held that in making that determination, expense is also a relevant factor. 17 The plaintiffs assert that this matter is unsuitable for determination by

summary trial because the record is incomplete and neitherdocument discovery nor examinations for discovery have been conducted. They assert that there is evidence relating to the Banks'relevant practices and their various agreements that is solely within the knowledge of the Banks. 18 The plaintiffs rely on a number of cases for the proposition that it is unjust to proceed with a

summary trial where parties have hadno reasonable opportunity to conduct discoveries and obtain evidence that is solely within the knowledge of the opposing litigants. Finanv. Kowalenko (1985), (BC CA), 68 B.C.L.R. 1 (C.A.); Bank of B.C. v. Anglo Cedar Product (1984), (BC SC), 57 B.C.L.R. 350 (C.A.); Bacchus Agents

(1981) Ltd.. 19 The authorities cited by the plaintiffs do not suggest that issues cannot be isolated for separate determination. Judgment on issues isexplicitly contemplated by Rule 18A. The authorities cited by the plaintiffs merely indicate that separate determination of issues shouldbe fair and efficient. 20 On a Rule 18A application, the Court must be able, on the whole of the evidence, to find the facts necessary to decide the issues offact and law and must be of the opinion that it would be just to decide the issues on the application.

Where this is so, the Court shoulddetermine the matter, particularly where the plaintiff has adduced no evidence to dispute the evidence presented by the defendant orshown any substantial basis for concluding that the plaintiff could succeed in challenging the defendant's evidence. Rule 18A(11); Finanat pp. 3, 4, 7, 11; Inspiration Management Ltd. at pp. 213 to 216. 21 This is not a case in which the Court is being asked to determine an important question of law when the underlying facts have notbeen established, as in Bacchus Agents

(1981) Ltd. to which the plaintiffs refer and Hosseini-Nejad v. Insurance Corporation of BritishColumbia, [2003] B.C.J. No. 1232, 2003 BCCA 274 at [paragraph] 8 and 9. . . .. 25 The Banks'

summary trial applications are not predicated on any assumed facts, as in Hobbs v. Robertson, [2002] B.C.J. No. 2021,2002 BCCA 381, to which the plaintiffs refer. The contracts are in evidence. 26 Where the primary issue in the case involves a question of law, such as the

interpretation of a contract, it is an appropriate case forsummary trial: Dixon v. British Columbia Snowmobile Federation, [2003] B.C.J. No. 605, 2003 BCCA 174 at [paragraph] 5. As notedby the Court of Appeal this is a matter ideally suited to determination by

summary trial because the issue is one of contractinterpretation: Dahl v. Royal Bank (C.A.) at [paragraph] 71. 27 The plaintiffs argue that there are overlapping issues arising out of their claim under that Trade Practice Act, R.S.B.C. 1996, c.457. Having reviewed the pleadings and the Trade Practice Act, I have concluded there is no significant overlap between the issueproposed for determination under Rule 18A and other issues remaining to be determined in the case. 28 The plaintiffs also argue that it is inappropriate to determine the

summary trial motion prior to certification.

Section 40 of the ClassProceedings Act, R.S.B.C. 1996, c. 50 provides that the Rules of Court apply to class proceedings to the extent the Act and the Rules arenot in conflict. As was identified by Brown J. in Dahl v.

Royal Bank (22 November 2002), Vancouver L020712 (B.C.S.C.) at[paragraph] 8, whether a motion will be heard prior to certification depends in large part upon the nature of the motion and circumstancesof the particular case. 29 Although the plaintiffs argue that the Banks' applications will not bring finality to the litigation, the Class Proceedings Actcontemplates that issues will be isolated and determined without bringing finality to the litigation.

In my view, what must be consideredis whether the resolution of the issue will bring finality to some of the issues in the action. 30 One of the objects of the Rules of Court as set out in Rule 1(5) is to "secure the just, speedy and inexpensive determination of every

proceeding on its merits." Rule 1(5) applies even though this is an intended class action: Edmonds v. Actton Super-Save Gas Stations Ltd. (1996), 5 C.P.C. (4th) 101 at [paragraph] 14 (B.C.S.C.). Rule 18A exists to achieve the objective set out in Rule 1(5) in appropriate cases. 31 I have concluded that the resolution of the issue of whether the charge between the Transaction Date and when the merchant is paid is properly characterized as "interest" will either resolve the plaintiffs' principal claims completely or decide the principal issues arising in respect of those claims.

This will save considerable time and expense and enhance the administration of justice. In my view, determination of the issues on this application is an effective use of court time and will assist the efficient resolution of this proceeding and is not inconsistent with the Class Proceedings Act . [ 20 ] Overall,

summary trials are available in a wide variety of circumstances, including proceedings involving very large amounts of money to even class proceedings.

Summary trials are even appropriate in some situations where credibility is an issue and where limited viva voce evidence may have to be called, a

summary trial may yet be appropriate. However, there is an equally broad spectrum of situations in which

summary trials are not appropriate. Applications for

summary trial will therefore depend on the particulars of each situation. 3. Why are these proceedings not suitable for a

summary trial? [ 21 ] Here, the parties themselves have indicated through their actions - e.g. undertaking full discovery, asking and receiving the right to call viva voce and any other kind of evidence they choose - that they were not really wanting, or needing, or expecting, a

summary trial; rather, their conduct establishes that the parties wanted and expected a conventional trial but one that could be held as quickly as possible. [ 22 ] The parties correctly decided that these proceedings are not suited to a

summary trial. In supporting their conclusion that they need a traditional trial, I have taken the following into account: - the course of the proceedings and the cost of proceeding to a conventional trial. As Read J. observed in Duff , these are factors which may determine whether a

summary trial is appropriate. Here, the course of pre-trial process chosen by the parties themselves establishes that they neither wanted nor expected anything other than a conventional trial: they have completed both documentary discovery and discovery of the parties. Moreover, in the circumstances here, there will be no additional cost in taking the proceedings forward for a conventional trial since the parties agreed to have an informal JDR on the day on which the

summary trial was to have taken place; - certain of the affidavits filed in these proceedings contain hearsay evidence that would not be admissible at trial for the truth of their content and could therefore not be used in a

summary trial. All affidavits filed for expected use in

summary trial proceedings must, of course, contain only admissible evidence; a shorthand way of referring to such evidence is evidence within the personal knowledge of the affiant, but a more technically correct way of referring to permissible evidence is evidence that would be admissible at trial for the truth of its content: hearsay evidence sometimes meets that criterion as the historical exceptions to the hearsay rule and the more recent principled approach to hearsay both amply demonstrate. Moreover, in a situation such as this one, where there is no certainty as to the evidence that will be led at trial, it is not possible to determine whether a

summary trial is appropriate; - the credibility of the parties will be a key factor in the determination of this dispute. 4. How will these proceedings be tried? [ 23 ] These parties will have a conventional trial in March, 2013. For the assistance of the court ’ s administrators, including the scheduling of a trial judge without conflict, the parties will, within 21 days of the issuance of this decision, file Form 37.

5. Why is Rule 7.8 counter-productive? [ 24 ] In my respectful view, the circumstances of this hearing illustrate why the re-casting of the former two-step process to have a

summary trial - the first step being the application for a

summary trial which was heard in morning chambers and could therefore be heard quickly and cheaply - into one step, although developed with the intent that it would prove to be an improvement to the process has, in actuality, made things worse for litigants.

a) The additional cost and expense of having a one-stage process [ 25 ] Allowing one party to apply for a

summary trial which triggers the setting of a one day trial by the court can, in the absence at least of agreement amongst the parties on the propriety of a

summary trial, lead to considerable additional cost and expense for the parties. Under the current system, all parties must have all of their witnesses present on the day scheduled by the court for the

summary trial even though the respondent has not agreed to a

summary trial process. In the circumstances here, where the defendant resides in Calgary and is represented by a lawyer from that city, the cost to all the parties of personal attendance in Edmonton for a one day trial which did not take place is much greater than was the cost, under the former system, of a morning chambers application to determine if a

summary trial was appropriate.

b) The delay inherent in the one step process [ 26 ] A one-step process if, of course, efficient if, at a minimum, both parties agree that a

summary trial is appropriate. Agreement between or amongst the parties concerning the appropriateness of a

summary trial does not, of course, bind the

summary trial judge who is entitled to set the matter over for a conventional trial. But where the parties do not agree with one another about the propriety of a

summary trial, the advantage of a morning chambers application is that a judge will hear the arguments for and against a

summary trial and will at least give a preliminary assessment of whether a

summary trial is appropriate. Morning chambers applications can be brought on quickly and cheaply; such applications do not materially impede the parties ’ progress to a conventional trial. However, setting down a one day

summary trial when one of the parties does not agree with the

summary trial procedure is likely to delay the parties in getting to a conventional trial if one is required since they will have to begin the process of complying with the requirements of the Rules of Court only after the original date set for a

summary trial.

c) The administrative inefficiency of the one step process [ 27 ] In a situation such as the one here, the court has lost one day of trial time. Under the former system, a decision could have been made in morning chambers about the propriety of a

summary trial. If a

summary trial is not judged to be appropriate, the parties will fill out a Form 37 which requires them to make their best assessment of the length of trial time required and, in that context, to inform the court of the number and even the names of the witnesses who will be called. Readiness for trial can thus be explored not only for the parties ’ benefit but also for the better administration of the court.

d) The inadequate provision for preparation by the

summary trial judge [ 28 ] As I mentioned in Lysyk , in order to bring efficiency - and to maintain fairness - in a

summary trial process, it is essential that the trial judge be provided with as much pre-trial assistance as can fairly be done. I quoted with approval from a British Columbia decision by the former Chief Justice of that province: But it is necessary to recognize that it is essential on all applications under R. 18A for counsel to bring an appropriate measure of professional skill to the preparation of both the substance and the form of their material. It is unfair to scoop-shovel volumes of disjointed affidavits and exhibits upon the chambers judge and expect him or her to make an informed judgment.

While I also have the view that many of these applications will in future be heard In Chambers Division III which will inevitably be expanded, many of these applications will continue to be heard on a chambers list or by a referral judge where there is little or no opportunity for judicial preparation. Thus it is incumbent upon counsel to ensure, as the old pleaders used to say, that there is a proper joinder of issues on all questions on fact and law, and the practice of serial affidavits as in this case should be avoided.

It should not be good enough in such serious matters, for counsel to throw up volumes of ill-considered affidavits and exhibits which do not squarely raise or answer the real issues in the case. The preparation of affidavits for an application or defence under R. 18A is a serious matter which requires the careful professional attention of counsel.

Fortunately, most counsel take great care in the preparation of their material. If they do not do this the chambers judge is entitled to send them away to put their material in proper order. Serial affidavits, as in this case, should be avoided if possible. One of counsel's objectives is to persuade, and they cannot expect to succeed in this endeavour if they permit confusion in the form of masses of disorganized fact and paper to intrude into the decisional process. [ 29 ] Not only are those concerns applicable in the situation here, but the dispute between the parties concerning the use of documents which Dr.

Islam maintains were wrongly detained by Mr. Mozumder from the Islam computer is an issue which the trial judge will have to consider, but one concerning which the trial judge would have no advance notice under the one-step system. [ 30 ] Finally, when scheduling

summary trials, the court must take into account the typical volume of trial evidence presented in the form of affidavits. The development of affidavit evidence for use in

summary trials requires careful attention by counsel. The court must also ensure that scheduling permits judges who are assigned to hear

summary trials to have sufficient preparation time so that the judges, just as the lawyers, can prepare themselves effectively for the

summary trial. A

summary trial is like an iceberg: the tip of the iceberg which shows above the water does not represent the huge amount of pre-trial preparation required by both lawyers and the judiciary which lies below the surface. [ 31 ] In

summary, the circumstances of this application suggest that the conflation of the two-step process for a

summary trial into a one-step process if not helpful either to the litigants or to the court. 7. Costs [ 32 ] Even though the attendance in Edmonton on December 10, 2012 resulted in the denial of the plaintiff ’ s application for a

summary trial, because of the objective difficulties inherent in the

interpretation of the new Rule 7.5, I have concluded that no costs should be awarded in respect of the December 10, 2012 hearing. Heard on the 10 th day of December, 2012. Dated at the City of Edmonton, Alberta this 17 th day of December, 2012. J.B. Veit J.C.Q.B.A. Appearances: Mandeep Badyal, Badyal Legal Solutions For the Applicant/Defendant, Mr. Mozumder Barinder S. Pannu, Pannu Law Office

For the Plaintiff, Dr. Islam Appendix A Application for judgment by way of

summary trial 7.5(1) A party may apply to a judge for judgment by way of a

summary trial on an issue, a question, or generally.

(2) The application must (

a) be in Form 36, (

b) specify the issue or question to be determined, or that the claim as a whole is to be determined, (

c) include reasons why the matter is suitable for determination by way of

summary trial, (

d) be accompanied with an affidavit or any other evidence to be relied on, and (

e) specify a date for the hearing of the

summary trial scheduled by the court clerk, which must be one month or longer after service of notice of the application on the respondent.

(3) The applicant may not file anything else for the purposes of the application except (

a) to adduce evidence that would, at trial, be admitted as rebuttal evidence, or (

b) with the Court ’ s permission. Response to application 7.6 The respondent to an application for judgment by way of a

summary trial must, 10 days or more before the date scheduled for the

hearing of the application, file and serve on the applicant any affidavit or other evidence on which the respondent intends to rely at the hearing of the application. Application of other rules 7.7(1)

Part 5 [Disclosure of Information] Division 2 [Experts and Expert Reports] applies to an application under this Division unless the parties otherwise agree or the Court otherwise orders.

(2) Part 6 [Resolving Issues and Preserving Rights] applies to an application under this Division except to the extent that it is modified by this Division. Objection to application for judgment by way of

summary trial 7.8(1) The respondent to an application for judgment by way of a

summary trial may object to the application at or before the hearing of the application on either or both of the following grounds: (

a) the issue or question raised in the claim, or the claim generally, is not suitable for a

summary trial; (

b) a

summary trial will not facilitate resolution of the claim or any part of it.

(2) Notice of the objection and anything on which the objector intends to rely must be filed and served on the applicant 5 days or more before the objection is scheduled to be heard.

(3) The Court must dismiss the objection if, in the Court ’ s opinion, (

a) the issue or question raised in the claim, or the claim generally, is suitable for a

summary trial, and (

b) the

summary trial will facilitate resolution of the claim or a part of it. Decision after

summary trial 7.9(1) After a

summary trial, the judge may (

a) dismiss the application for judgment, or (

b) grant the application and give judgment in favour of a party, either on an issue or generally.

(2) Judgment must be granted after a

summary trial unless (

a) the application is dismissed, (

b) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (

c) the judge is of the opinion that it would be unjust to decide the issues on the basis of the

summary trial. Judge remains seized of action

7.10 A judge who has heard an application for judgment by way of a

summary trial may remain seized of the action. Order for trial 7.11 A judge, at any stage of a

summary trial application, may (

a) order the trial of the action generally or on a question or issue and give directions with respect to preparation for trial and a trial date, or (

b) give any procedural order that the circumstances require. Alberta Rules of Court

Schedule A Form 36 [Rule 7.5(2)] Clerk's stamp: COURT FILE NUMBER COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL CENTRE PLAINTIFF(S) (APPLICANT(S)) DEFENDANT(S) (RESPONDENT(S)) DOCUMENT APPLICATION FOR

SUMMARY TRIAL ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT NOTICE TO RESPONDENT(

S) This application is made against you. You are a respondent. You have the right to state your side of this matter before the master/judge. To do so, you must be in Court when the application is heard as shown below: Date _____________________ Time _____________________ Where _____________________

Before Whom _____________________ You may also object to this application at or before the hearing of the application on either or both of the following grounds: (

a) The issue or issues related in the claim, or the claim generally, is not suitable for a

summary trial; (

b) A

summary trial will not facilitate resolution of the claim or any part of it. Go to the end of this document to see what else you can do and when you must do it. Remedy claimed or sought, including issue or issues to be determined (or indicate that the claim as a whole is to be determined): 1. Grounds for making this application: 2. Basis on which this case is appropriate for

summary trial: 3. Material or evidence to be relied on: 4. Applicable rules: 5.

Applicable Acts and regulations: 6. How the application is proposed to be heard or considered: 7.