5.31: Use of transcript and answers to written questions
6.6: Response and reply to application
6.8: Questioning witness before hearing
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants in a contractual dispute appealed two Decisions of a Master that granted Summary Judgment to the Plaintiff under Rule 7.3. Among other things, the Court noted that in the second Decision, the Master did not consider one of the Affidavits filed by the Defendants, because it was filed late contrary to Rule 6.6(2) and Practice Note 2. Justice Campbell observed that an Appeal before a Justice was a de novo hearing of the case where new evidence may be considered. Campbell J. allowed the new evidence proposed by the Defendants, including the previously refused Affidavit and the Transcript from Questioning under Rule 6.8 as it was relevant and material information which related to the issues to be decided.

Justice Campbell applied the test for Summary Judgment under Rule 7.3, and held that pursuant to prior leading authorities, Summary Judgment may be granted “if a disposition that is fair and just to both parties can be made on the existing record”, where each party to the Application is expected to put its strongest case forward. Whether further Questioning was needed to make a fair and just determination was an issue before the Court in this case. Among other things, the Defendants argued that the Court could not consider certain information provided by the Plaintiff’s representative in a Summary Judgment Application.

The Court reviewed the evidence in question, and noted that there was a difference as to the use that can be made of the evidence adduced under Part 5 of the Rules, and Questioning on an Affidavit or Questioning for the purpose of an Application under Part 6 of the Rules. Specifically, answers to Undertakings given during Questioning are subject to Rule 5.31 which provides that such evidence is only the evidence of the Questioning party which may be used against the party who was Questioned. It is not evidence that can be used generally in the Application.

Relying on the available evidence, including evidence from one of the Plaintiff’s witnesses’ questioning on an Affidavit and Rule 6.8 Questioning, the Court upheld the Master’s Decisions, and dismissed the Defendants’ Appeal.

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