3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
6.14: Appeal from master’s judgment or order
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
7.4: Proceedings after summary judgment against party

Case Summary

The parties appealed a Master’s Order, pursuant to Rule 6.14. The Master’s Order granted the Plaintiff’s Application to amend its pleadings and the Defendants’ Application to summarily dismiss the Plaintiff’s claim. The Defendants’ Application to strike the Action was denied. Both parties appealed.

The Court noted that Rule 6.14 provides that Appeals are on the record, subject to the addition of relevant and material evidence. If no additional evidence is introduced, a Judge hearing the Appeal may frame their reasons with reference to the Master's decision.

Regarding the Master’s decision to permit amendments to the Plaintiff’s pleadings, the Court noted that Rule 3.65 stipulates that the Court may give permission to amend a pleading where the amendment is not hopeless. An application to amend requires a modest degree of evidence in support, which existed in this case. Accordingly, the Master’s decision to permit the amendment was undisturbed.

The Court also refused to disturb the Master’s decision not to strike the Action, pursuant to Rule 3.68. In doing so, the Court found that the Action was not premature, as alleged by the Defendants.

Finally, the Court turned to the summary dismissal of the Plaintiff’s claim. Reviewing Rules 7.2 through 7.4, the Court noted that Summary Dismissal will be appropriate where the record is sufficiently certain to resolve the dispute on a summary basis, or, in other words, there is no genuine issue requiring a Trial. The moving party must establish on a balance of probabilities that there is "no merit" to the claim; the resisting party 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 permits a fair summary disposition. A plaintiff faced with an application for Summary Dismissal may defeat the application by showing there are disputes on "material facts" such that the Court cannot make the necessary factual findings, that there are "gaps or uncertainties" in the facts or the law, or that the law is sufficiently "unsettled or complex" that it is not possible to apply it to the facts. The Court, in this case, found that Summary Dismissal in favour of the Defendant was appropriate as the Plaintiff’s claim was contrary to current jurisprudence from the Supreme Court of Canada.

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