The Plaintiff, Allnut, sued the Defendant, Hudsons, after he was assaulted in a bar operated by Hudsons. The Action was filed pursuant to the Occupiers’ Liability Act, RSA 2000 c O-4. Allnut applied for Summary Judgment against Hudsons and Hudsons applied for Summary Dismissal against Allnut.

Master Smart reviewed the principles governing Summary Judgment pursuant to Rule 7.3. Summary Judgment will be appropriate when there is no genuine issue for Trial. This will be the case when the process: allows the Judge to make the necessary findings of fact; allows the Judge to apply the law to the facts; and where it is a proportionate, more expeditious and less expensive means to achieve a just result.

Master Smart quoted from Weir-Jones Technical Services Incorporated v Purolator Ltd., 2019 ABCA 49 to summarize the procedural approach for evaluating these three requirements. It is possible for a Judge to make the necessary findings of fact even where the facts are in dispute. Provided the existing record is sufficient for the Judge to make inferences where necessary and to make findings of fact, Summary Judgment may be appropriate. If the Judge cannot make the necessary findings of fact, this is an indication that there is a genuine issue requiring a Trial. Where the facts are sufficiently determinable (as required by the first part of test), applying the law to those facts essentially comes down to a question of law. Therefore, where the facts are sufficiently determinable based on the existing record, or where the case turns on the interpretation of documents, the second part of the test will also generally be met.

Finally, the analysis of whether disposition of a case on a summary basis is a “proportionate, more expeditious and less expensive means to achieve a just result” involves making a final “check” that Summary Judgment (as opposed to a Trial) will not pose any substantive or procedural injustice to either party. The Court always has the discretion to send a matter to Trial even if Summary Judgment might also be possible, but this discretion should not be used to postpone resolution of a dispute when it is possible.

Applying these principles to the facts, Master Smart ruled that Summary Judgment was not appropriate in this case. There was insufficient evidence before the Court to show that Allnut’s assaulter was so intoxicated that he presented a “foreseeable risk” to Hudsons’ patrons. Moreover, Master Smart stated that evidence of this sort could still be obtained. However, Master Smart also confirmed that a failure to establish Summary Judgment does not necessarily mean that Summary Dismissal is appropriate. And in this case, Master Smart ruled that Summary Dismissal was not appropriate. Hudsons had tendered evidence that it had proper procedures in place for dealing with intoxicated customers; however, there was no evidence before the Court to show that these procedures were actually being followed when Allnut was assaulted.

Both Applications were dismissed with the parties bearing their own Costs.