6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiffs and the Defendants both appealed a Master’s Decision that dismissed both the Plaintiffs’ Application for Summary Judgment and the Defendants’ Application for Summary Dismissal.

Pursuant to Rule 6.14, a Justice has discretion to allow additional evidence on an Appeal from a Master’s Decision, and Justice Rothwell therefore held a de novo hearing and applied the standard of review of correctness.

Pursuant to Rule 7.3(1), Summary Judgment can be granted if: there is no defence to a claim or part of it, there is no merit to a claim or part of it, or if the only real issue is the amount to be awarded. If the burden of showing “no merit” or “no defence” is met, then the other party is required to show that there is a genuine issue requiring a Trial.

Under the Occupiers Liability Act, RSA 2000, c O-4, the Defendant occupier company, Hudsons, would be liable in negligence if it was reasonably foreseeable by Hudsons that the Plaintiff, Allnutt, would have been injured by the intoxicated Defendant, Carter. Justice Rothwell found that in the absence of a prior disturbance or inappropriate behaviour, an unprovoked assault was not reasonably foreseeable. As such there was no genuine issue for Trial.

His Lordship found that the assault was not reasonably foreseeable, dismissed the Action and Appeal of the Plaintiffs for their Application for Summary Judgment, and granted the Appeal of Hudsons for their Application for Summary Dismissal.

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