Waddy v Hartford et al, 2023 ABKB 0047

Court of King’s Bench of Alberta Citation: Waddy v Hartford et al, 2023 ABKB 0047 Date: 20230125 Docket: 2210 00556 Registry: Red Deer Between: Julia Waddy Appellant - and - Ryan J Hartford Davidson and Williams LLP 289904 Alberta LTD TransUnion Canada Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice Eleanor J Funk _______________________________________________________

Appeal from the Order by L.A. Mattis, The Honourable Applications Judge Dated the 20 th day of September, 2022 ( Docket: 2210-00556) Introduction [ 1 ] This is an appeal from the decision of an Applications Judge to strike Ms. Waddy’s claim against the lawyer (Mr. Hartford) who acted for a party opposite to Ms. Waddy in a civil claim. [ 2 ] Ms.

Waddy complains that after a successful appeal, in which a $3,000 civil judgment against her was overturned, that judgment remains on her file with a credit bureau and is now interfering with her ability to refinance a mortgage. [ 3 ] She blames the credit bureau, the opposing party in the civil action, that party’s lawyer (Mr. Hartford) and his law firm for failing to remove this credit report and named each of these parties as co-Defendants in a statement of claim. In that claim, Ms. Waddy alleged that Mr.

Hartford, and his firm, had “vexatiously resisted” the removal of the credit report and were in breach of the appeal judgment by failing to have this report removed from the credit bureau. She sought damages of $800,000, declarations of contempt, and other remedies. [ 4 ] Mr. Hartford, and his law firm, successfully applied to have Ms. Waddy’s claim against them summarily dismissed for having “no merit”. Ms. Waddy appeals that decision to this Court. [ 5 ] While Ms.

Waddy frames the issue as an investigation into who made the report to the credit bureau and who has the authority to remove that report, the real issue is the duty that Mr. Hartford (a lawyer) owed to Ms. Waddy (an opposing party). [ 6 ] For the reasons below, Ms. Waddy’s appeal is dismissed. Background [ 7 ] The underlying facts here are not in dispute. Mr. Hartford represented a numbered company in a civil action against Ms. Waddy and her husband. After a trial in the Provincial Court Civil Division, Mr. Hartford’s client was successful in obtaining a judgment against Mr.

Waddy, a portion of which was awarded against Ms. Waddy, jointly and severally. The Waddy’s appealed. [ 8 ] On appeal to this Court, the judgement against Mr. Waddy was upheld; the judgment against Ms. Waddy was overturned. With this ruling, Mr. Hartford prepared a draft Order and sent it to Ms. Waddy for her approval. Ms. Waddy refused to approve the Order. [ 9 ] Mr. Hartford then sent the draft Order, together with his correspondence with Ms. Waddy, to the Court, copying Ms. Waddy on this correspondence. At no time did Ms. Waddy raise with the Court any dispute in relation to the terms of the Order.

Justice Hollins signed the Order, and it was entered with the Court, without Ms. Waddy’s approval. [ 10 ] Mr. Hartford filed the Order and discharged the Writ of Enforcement in relation to Ms. Waddy with the Personal Property Registry. He provided Ms. Waddy with copies of the filed Order and discharged Writ. [ 11 ] After her success on appeal, Ms. Waddy repeatedly wrote to Mr. Hartford, requesting and demanding that he remove the civil judgment from a credit bureau. Mr. Hartford informed Ms. Waddy that he had not filed any credit report and that he would not assist her in removing any report. [ 12 ] Ms.

Waddy then sued Mr. Hartford and his law firm (together with the plaintiff in the civil action and the credit bureau) for failing to remove the civil judgment against her from the credit bureau. In her claim, Ms. Waddy also alleged some improprieties in Mr. Hartford’s drafting of the Order that he submitted to Justice Hollins following the appeal. [ 13 ] Mr. Hartford, and his law firm, applied to have Ms. Waddy’s claim struck for failing to disclose a cause of action against them and for

summary dismissal of her claim. The Application to Strike Ms. Waddy’s Claim and the Decision of the Applications Judge [ 14 ] On September 20, 2022, Mr. Hartford’s application was heard in front of Applications Judge Mattis. In this hearing, Counsel

for ALIA (Alberta Lawyers Indemnity Association) appeared for Mr. Hartford and his law firm. Ms. Waddy was self-represented. [ 15 ] Counsel argued that Ms. Waddy’s claim was not valid because Mr. Hartford had never been Ms. Waddy’s lawyer. As counsel for the opposing party, he did not owe Ms. Waddy the duty of care that she alleged in her claim. [ 16 ] In relation to any alleged improprieties in submitting the draft Order to the Court, Counsel pointed to the correspondence between Mr. Hartford and Ms. Waddy, in which Mr. Hartford had given Ms.

Waddy ample opportunity to provide her input in relation to the terms of the Order. Because Justice Hollins signed the Order, Counsel reasoned the Justice had been satisfied the Order was properly drafted. [ 17 ] In relation to the credit reporting, Counsel pointed to Mr. Hartford’s affidavit evidence, in which he stated he made no report to a credit bureau and believed his client had similarly made no report. In any event, Mr. Hartford had no duty or obligation to intervene on Ms. Waddy’s behalf in relation to any issues she was having with a credit bureau. [ 18 ] In reply, Ms.

Waddy first raised an issue relating to the service of Mr. Hartford’s application. She said she received his application on September 8 th , 23 days after its August 16 th filing date. Referring to Rule 3.31 (the rule governing service of statements of defence), Ms. Waddy argued Mr. Hartford’s application should be dismissed for late service. [ 19 ] Ms. Waddy framed her submissions before Applications Judge Mattis as questions: • Did Mr. Hartford, or anyone from his firm, contact the credit bureau? • Should Mr. Hartford, or anyone from his firm, have contacted the credit bureau? • Did Mr.

Hartford inform his client about her requests to contact the credit bureau? • Who has the authority to put judgments on a credit report? • Who has the authority to remove a judgment from a credit report? • Was the Consumer Protection Act followed by everyone involved? • Does the same party who put a judgment on a credit bureau also have to be the same party to remove it, or can other parties report a judgment has been satisfied? • Was the Order written by Mr. Hartford clear for everyone to follow? [ 20 ] Ms.

Waddy went on to explain her frustrations in being unable to have the judgment removed from the credit bureau, notwithstanding she had been successful in having this judgment overturned on appeal. [ 21 ] In her submissions, Ms. Waddy seemed to suggest that the Order that resulted from this appeal should now compel the parties involved to forward that Order to the credit bureau. Ms. Waddy also argued that Mr. Hartford improperly included a costs award in the Order that he submitted to Justice Hollins when no costs were ordered on the appeal.

Decision of Applications Judge Mattis [ 22 ] On the issue of service, Applications Judge Mattis noted that applications must be served at least five days before a court hearing. While she was not satisfied there was an issue of late service, Judge Mattis gave Ms. Waddy the option of seeking an adjournment if she felt she needed more time to reply but was not prepared to dismiss the application on this basis. Ms. Waddy did not seek an adjournment. [ 23 ] On the merits, Applications Judge Mattis noted Mr.

Hartford’s application was brought under both Rules 3.68 (to strike the action for disclosing no reasonable claim) and 7.3 (summary dismissal for having “no merit”). [ 24 ] The Court was satisfied Ms. Waddy’s statement of claim did not clearly set out the duty that Mr. Hartford, or his firm, owed to her. Noting that Rule 3.68 does not allow for evidence where pleadings disclose no reasonable claim, Applications Judge Mattis turned to Rule 7.3 and decided the issue on the basis of

summary judgment (or

summary dismissal). [ 25 ] Dealing first with the issue of the Order that Mr. Hartford submitted to the Court following the appeal, Applications Judge Mattis noted that Justice Hollins was satisfied with the terms of the Order and signed it. It was up to the parties, when the Order was submitted to the Court, to raise any issues with Justice Hollins. Ms. Waddy had no valid claim in relation to how the Order was presented. [ 26 ] On the issue of Ms. Waddy’s credit reporting, the Court noted Mr. Hartford’s evidence in which he stated he made no contact with a credit bureau.

Instead, he took steps on behalf of his client to file a Writ of Enforcement after the trial judgment. And he took steps to discharge that Writ after the judgment was overturned on appeal. [ 27 ] Applications Judge Mattis held there is no cause of action in law nor any duty on an opposing lawyer to assist in remedying or repairing a credit report that counsel had no role in creating. On this basis, the Court concluded there was no merit to Ms. Waddy’s claim against Mr. Hartford, nor his firm, and dismissed her claim. Ms. Waddy’s Appeal

[ 28 ] In this appeal, Ms. Waddy raised an additional argument that Mr. Hartford’s application was filed on a “Form 11” (the form used for statements of defence) and not a Form 27 (the form used for applications). She argued Mr. Hartford’s application should be dismissed for being filed on the wrong form. Ms. Waddy also argued Mr. Hartford’s application should be dismissed for several other alleged breaches of the Rules of Court . Law and Analysis [ 29 ] As Ms.

Waddy has raised some additional evidence and arguments in this appeal, I must conduct a fresh assessment of the facts and determine whether her claim against Mr. Hartford, and his firm, should be dismissed for having “no merit”, with no genuine issues requiring a trial. Standard of Review [ 30 ] An appeal from an Applications Judge is a hearing de novo . The standard of review is correctness.

New evidence presented on appeal necessarily requires a fresh assessment of the facts: Spady v Spady Estate , 2022 ABQB 391 , at para 34 , citing Kadco Construction Inc v Sterling Bridge Mortgage Corp , 2021 ABCA 52 at para 11 ; Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at paras 17 and 30 ; Gudzinski Estate v Allianz Global Risks US Insurance Co , 2012 ABCA 5 at paras 21 and 24 (see also, HOOPP Realty Inc v. Emery Jamieson LLP , 2020 ABCA 159 at paras 38-41 , and Western Energy v. Savanna Energy , 2022 ABQB 259 at paras 22- 23 ). The Tests to Strike Pleadings and

Summary Judgment [ 31 ] Mr. Hartford brought his application under both Rule 3.68 (application to strike for failing to reveal a cause of action) and Rule 7.3 (application for

summary dismissal for the claims having “no merit”). [ 32 ] Applications to strike pleadings under Rule 3.68(2)(

b) for failure to disclose a cause of action are dealt with based on the pleadings. The facts as pleaded are assumed to be true; no evidence is permitted on these applications. A claim will be “generously” read and will only be struck if it is plain and obvious that the pleadings disclose no reasonable cause of action: PricewaterhouseCoopers Inc v Perpetual Energy Inc , 2021 ABCA 16 at para 70 ; citing R v Imperial Tobacco Canada Ltd . 2011, SCC 42 at para 21 . [ 33 ]

Summary dismissal applications are generally brought after pleadings are closed and are based on affidavit evidence that demonstrate there is no merit to the claim.

Summary dismissal is appropriate where the record is sufficiently certain to resolve the dispute on a

summary basis. Put another way, where there is no genuine issue requiring a trial. The party seeking

summary dismissal must establish, on a balance of probabilities, that there is “no merit” to the claim. The party resisting

summary judgment must put its best foot forward and demonstrate a genuine issue requiring a trial. In the end, the presiding judge must be left with sufficient confidence that the state of the record allows for a fair

summary disposition: PricewaterhouseCoopers , para 69, leave to appeal to SCC refused, [2021] SCCA No 79; citing Weir-Jones Technical Services Inc v Purolator Courier Ltd , 2019 ABCA 49 at para 47 . 1) Was the Applications Judge correct in not using Rule 3.68 to allow Ms. Waddy to amend her claim? [ 34 ] Ms. Waddy argues the Applications Judge erred by not using Rule 3.68 to allow her to amend her claim. I note that Ms. Waddy did not apply to amend her statement of claim before the Applications Judge. In her submissions before the Applications Judge, and before me, Ms.

Waddy did not suggest any proposed amendments to her claim. [ 35 ] In her submissions before me, Ms. Waddy reframed her duty of care argument to suggest she has a cause of action against Mr. Hartford, and his law firm, under the Consumer Protection Act . [ 36 ]

Section 49 of the Consumer Protection Act states that no person may give false or misleading information to a reporting agency.

Section 50 creates a cause of action for persons who have suffered loss, damage or inconvenience resulting from a contravention to this part of the Act . [ 37 ] Ms. Waddy’s argument appears to be that if Mr. Hartford’s client (the numbered company) violated the Consumer Protection Act by providing false or misleading information to a credit bureau, then she would also have a cause of action against the lawyers for the numbered company for allowing their client to contravene these provisions. [ 38 ] Ms.

Waddy provided me with no legal authority to support her argument that she would have a cause of action against any lawyers whose client contravened the Consumer Protection Act . To my mind, to accept Ms. Waddy’s

interpretation of the CPA would be an acceptance that Mr. Hartford, and his firm, owed a duty of care to Ms.

Waddy to prevent their client from filing any false or misleading report. [ 39 ] “Canadian courts have repeatedly ruled that lawyers have no duty of care to opposing parties”: Savage v Sniderman , 2021 ABQB 165 at para 24 , citing Templanza v Ford , 2018 ABQB 168 at paras 69-72 , appeal abandoned 2019 ABCA 309 , reinstatement denied 2019 ABCA 345 , leave to appeal to SCC refused, 39034 (30 April 2020); Kumar v Korpan , 2020 SKQB 256 at paras 46-49 ; 9383859 Canada Ltd v Saaed , 2020 ONSC 4883 ; Sewak v Killips , 2021 ABQB 64 at paras 22-23 . [ 40 ] In Wong v Wong , 2011 ABQB 688 at paragraphs 23-24 , Justice Manderscheid stated: There can be absolutely no legal duty of care owed by a Defendant’s counsel to a Plaintiff.

If such a duty were to exist, it would strike at

the very heart of the adversarial system, which forms the very foundation of litigation under the common law. [ 41 ] Against this background of legal authority, I am satisfied there is no legal basis to include Mr. Hartford, and his firm, in any cause of action under the Consumer Protection Act . To the extent Ms. Waddy seeks an amendment to include such a claim, I am left to conclude her claim would have been struck even if this argument had been included in the original pleadings: Hicke v Drefko , 2017 ABQB 795 at paras 12-18 . [ 42 ] I otherwise have no submissions in relation to any amendments that Ms.

Waddy might seek. 2) Was the Applications Judge correct in finding Ms. Waddy had no valid claim in relation to the Order that Justice Hollins signed? [ 43 ] On this appeal, Ms. Waddy says that because the Order of Justice Hollins did not contain the Provincial Court file number, she continues to have difficulty in having the judgment removed from the credit bureau. [ 44 ]

Part 9 of the Rules of Court deals with Judgments and Orders. Rule 9.2(2)(

a) states that within 10 days after the judgment or order is pronounced, the party responsible for drafting the order must prepare a draft and serve it on the other parties. Subrule (

b) states that within 10 days after the draft judgment or order is served, each party may, (

i) approve the draft or (ii) object to the draft, providing particulars of the objection. Subrule (

c) states that if a party does not approve or object to the draft judgment or order within the 10 days described in (b), but all other requirements are met and service of the draft is proved, the judgment or order may be signed and entered. Rule 9.3 states that if there is a dispute about the contents of a judgment or order, the disputants may apply to the Court to resolve the dispute. [ 45 ] On the evidence before me, Mr. Hartford followed the procedure in Rule 9.2(2) in relation to drafting the Order, serving it on Ms. Waddy, and then submitting it to the Court after Ms. Waddy refused to approve it. Ms.

Waddy did not provide any particulars of her objection to the draft Order and did not apply to Justice Hollins to settle any disputes in relation to the terms of the Order, as allowed by Rule 9.2(3). In short, Ms. Waddy did not avail herself of the provisions in the Rules for resolving disputes over the terms of orders. [ 46 ] I agree with the Applications Judge that Ms. Waddy does not now have a cause of action against Mr.

Hartford, or his law firm, in relation to how the Order was presented to the Court nor because she continues to have difficulties in having the civil judgment removed from her credit report. [ 47 ] As an aside, Ms. Waddy seems to suggest that Justice Hollins’ Order should compel all parties to file that Order with the credit bureau. This would only be the case if Justice Hollins specifically directed the parties to do so. If so, then the Order would contain a specific clause with that direction. Without that specific direction from Justice Hollins, Ms.

Waddy is unfortunately misguided in her understanding and assertion that the Order compels Mr. Hartford, or anyone, to file the Order with the credit bureau. Conclusion –

Summary Dismissal [ 48 ] I am satisfied that Mr. Hartford has met his burden of establishing there is “no merit” to Ms. Waddy’s claims in relation to: (1) the Order that was presented to Justice Hollins; and (2) any reporting to the credit bureau, including any alleged breach of the Consumer Protection Act . Ms. Waddy has not demonstrated there are any genuine issues requiring a trial on these issues. I am left with more than sufficient confidence on the state of the record that Ms. Waddy’s claims can be summarily dismissed. [ 49 ] For these reasons, Ms. Waddy’s appeal is dismissed. Ancillary Issues [ 50 ] Ms.

Waddy has alleged a number of violations of the Law Society Code of Conduct and Rules of Court to bolster her argument that she has a cause of action against Mr. Hartford and that his application should be dismissed. I will address those arguments below. Ms. Waddy’s alleged breaches of the Law Society Code of Conduct [ 51 ] Ms. Waddy cites several provisions of the Law Society Code of Conduct in support of her argument that Mr. Hartford, and his firm, breached their ethical obligations to their client in a way that now gives rise to Ms. Waddy having a cause of action against Mr. Hartford, and his firm.

She suggests that Mr. Hartford failed to act honourably and was dishonest. [ 52 ] In Groia v Law Society of Upper Canada , 2018 SCC 27 , the Supreme Court of Canada held that challenges to opposing counsel’s integrity must “both be made in good faith and have a reasonable basis”. Allegations that impugn opposing counsel’s integrity must not be made lightly. A reputation for integrity is a lawyer’s most important professional asset. It takes a long time to build up and can be lost overnight. Allegations of misconduct against lawyers must have a reasonable foundation.

Anything less “gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions”. The consequences to the opposing lawyer’s reputation are simply too severe to require anything less than a reasonable basis for allegation impugning his integrity”: Groia , at paras 84-86 . [ 53 ] While the matter before me does not involve a complaint to the Law Society, this instruction from the Supreme Court is useful guidance in my approach to Ms. Waddy’s allegations that Mr. Hartford acted unethically in his dealings with his client. [ 54 ] The evidence before me is that Mr.

Hartford, and his firm, made no credit report in relation to Ms. Waddy. In his affidavit, Mr. Hartford stated his belief that his client also made no credit report. Ms. Waddy has adduced no evidence to contradict this evidence

or to suggest that it is false or misleading. While Ms. Waddy may honestly believe that Mr. Hartford, and his firm, breached their ethical obligations in their dealings with their client, the evidence before me fails to disclose a reasonable basis for that belief. [ 55 ] To my mind, the only provisions of the Code of Conduct that apply here are found in 5.1-6, which states, A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings. [ 56 ] This is the duty that Mr. Hartford, and his firm, owed to Ms. Waddy.

On the evidence before me, they discharged this duty in preparing, submitting, and filing the Order following Ms. Waddy’s successful appeal, in compliance with Rule 9.2(2). They further discharged this duty in registering a Writ of Enforcement with the Personal Property Registry following the trial judgment, and then discharging that Writ after Ms. Waddy’s successful appeal. They owed Ms. Waddy no other duty. Ms. Waddy’s alleged violations of the Rules of Court 1) Should the application be dismissed for being on the wrong form? [ 57 ] An issue not raised before the Applications Judge but related to Ms.

Waddy’s argument that the rules of service in Rule 3.31 were violated, is that Mr. Hartford’s application was on a “Form 11” (the form used for statements of defence) when it should have been on a “Form 27” (the form used for applications). Because the wrong form was used, Ms. Waddy argues Mr. Hartford’s application should have been dismissed for non-compliance with Rule 6.3 (the rule governing applications). [ 58 ] Rule 3.31 governs statements of defence. Under subrule (1)(a), statements of defence must be filed on a Form 11. [ 59 ] Rule 3.68 deals with significant deficiencies in claims. Subrule (1)(

b) allows courts to amend or set aside a commencement document or pleading that contains an irregularity so prejudicial to the claim that it is sufficient to defeat the claim. [ 60 ] Rule 6.3 governs applications. Under this Rule (and

Schedule

A) applications must be filed on a Form 27. Subrule (2)(b)-(

g) sets the information that must be included in applications. Subrule (2) permits the Court to otherwise allow applications. [ 61 ] The purpose of Rule 6.3(2) is to ensure that a respondent knows the arguments to be addressed: Matta v Matta , 2021 ABQB 826 , at para 18 . [ 62 ] Mr. Hartford’s application is marked “Form 11 Rule 3.31” in the top corner. The document is titled “Application to Strike Pleading or

Summary Dismissal”. The body of the document mirrors the requirements of a Form 27 application. The document contains all of the information required by Rule 6.3(2)(b)-(g). In other words, the document is an application, notwithstanding being mislabeled “Form 11” on the top corner. [ 63 ] Ms. Waddy knew the arguments to be addressed and she was able to prepare for them. At the hearing before the Applications Judge, no one noticed that the application was marked as a “Form 11” in the top corner. [ 64 ] The mislabeling of Mr.

Hartford’s application as a “Form 11” was an unfortunate irregularity, the answer for why this happened I don’t have. Ms. Waddy was not prejudiced in any way by this irregularity. The document otherwise was, in its appearance and contents, an application, in compliance with Rule 6.3. For these reasons, I would not dismiss Mr. Hartford’s application for being on the “wrong form”. 2) Should Mr. Hartford’s application be dismissed for short service? [ 65 ] Ms. Waddy argues that because Mr. Hartford filed a “Form 11” the rules of service in Rule 3.31 should apply.

Under subrules (2) and (3) statements of defence must be filed and served, in Alberta, within 20 days after service of the statement of claim . She believes this rule was violated as she received Mr. Hartford’s application 23 days after he filed it. [ 66 ] Rule 6.3(3) states that applications must be filed at least five days before the application is scheduled to be heard in court. Ms. Waddy received Mr.

Hartford’s application on September 8 th ; his application was scheduled to appear in court on September 20 th . [ 67 ] The purposes animating the rules that govern service of statements of defence and service of applications are very different. Under Rule 3.36, if a defendant does not file a statement of defence, the plaintiff may enter a judgment against the defendant or may require the clerk of the court to note the defendant in default.

In other words, by filing a statement of defence, a defendant preserves his ability to participate in the proceedings against him. [ 68 ] The purpose of giving notice of applications, under Rule 6.3, is to ensure that a respondent knows the arguments to be addressed and to allow the Court to properly prepare: Matta at para 18 . [ 69 ] I have already found that Mr. Hartford’s application was unfortunately mislabeled as a “Form 11”; it was otherwise in all respects an application, not a statement of defence.

Because it is an application, there is no basis in law nor in reason to apply the rules of service that govern statements of defence to Mr. Hartford’s application. Rule 6.3(3) applies. Because Ms. Waddy received the application more than five days before the court date, there is no issue of short service. 3) Should Mr. Hartford have filed two separate applications? [ 70 ] In the body of his application, Mr. Hartford stated his reliance on Rule 3.68 and / or Rule 7.3. Ms. Waddy argues that Mr. Hartford should have filed two separate applications if he were to rely on two separate rules.

[ 71 ] Rule 1.2 states the purpose and intention of the Rules . Subrule (2)(

a) states the rules are intended to be used to identify the real issues in dispute. Rule 13.8 deals with pleadings and their contents. Subrule (1)(

a) specifically states that pleadings may include alternative claims or defences. In Stoney Tribal Council v HMTQ , 2021 ABQB 519 , at paragraph 11 , the Court held that pleading in the alternative is permissible and in keeping with these rules. [ 72 ] Where the Rules specifically allow pleadings to include alternative claims, there is no basis for Ms. Waddy’s argument that Mr. Hartford should have filed two separate applications. 4) Should Mr. Hartford have been permitted to file an affidavit? [ 73 ] Ms. Waddy argues that Mr.

Hartford should not have been permitted to file an affidavit because his application was made under Rule 3.68. [ 74 ] Applications to strike pleadings under Rule 3.68 do not permit the filing of evidence.

Summary judgment applications, under Rule 7.3, require affidavit evidence. Because Mr. Hartford brought his application under both of these rules, he was required to file an affidavit in support of his application under Rule 7.3. [ 75 ] The Applications Judge was clearly alive to the restriction under Rule 3.68 against the use of affidavits and specifically decided the application under Rule 7.3, as she was entitled to do. 5) Was Rule 7.3(1)(

c) improperly used? [ 76 ] Ms. Waddy argued that Rule 7.3(1)(

c) should not have been used when there were still issues to be resolved. [ 77 ] For Ms. Waddy, the issue for trial is whether Mr. Hartford owed a duty of care to ensure his client reported factual information to the credit bureau. She believes a trial is required to determine who reported the judgment to the credit bureau and who has the authority to remove it. As these questions have not been answered, Ms. Waddy believes there remains a cause of action against Mr. Hartford and his law firm. [ 78 ] Rule 7.3 deals with

summary judgment. Subrule (1)(

c) allows a party to apply to the court for

summary judgment where the only real issue is the amount to be awarded. Subrule (1)(

b) allows a party to apply to the court for

summary judgment where there is no merit to a claim or part of it. [ 79 ] I have explained throughout these reasons why there is “no merit” to Ms. Waddy’s claims and that she has not demonstrated any genuine issues requiring a trial. [ 80 ] I do note that, in Mr. Hartford’s application, he stated reliance on Rules 3.68(1), (2) b, c, and/or 7.3(1)(c) (the subrule where the only real issue is the amount to be awarded).

To my mind, this is an error on the application; it should have been brought under Rule 7.3(1)(b) (the subrule dealing with claims having “no merit”). [ 81 ] As all parties and the Court, proceeded on the basis of Ms. Waddy’s claim having “no merit”, I am satisfied that no prejudice resulted from the application citing subrule (

c) instead of subrule (b). [ 82 ] In the end, I find there is no basis to dismiss Mr. Hartford’s application for any alleged breaches of the Rules of Court . Conclusion [ 83 ] I have found there is “no merit” to Ms. Waddy’s claims against Mr. Hartford, and his firm. I have found that Ms. Waddy has demonstrated no genuine issues requiring a trial. And, I have found that the record permits summarily dismissal of Ms. Waddy’s claims. I have also found no basis to dismiss Mr. Hartford’s application under the Rules of Court . For all these reasons, Ms.

Waddy’s appeal is dismissed. [ 84 ] The parties may address me on the issue of costs within 30 days of the receipt of these reasons. Their submissions may be in letter form, no longer than three (3) pages, and submitted to my Judicial Assistant. Heard on the 06 th day of January, 2023. Dated at the City of Red Deer, Alberta this 25 th day of January 2023 . Eleanor J Funk J.C.K.B.A.

Appearances: Julia Waddy for the Appellant Jennifer Blanchard for the Respondents