The Defendant applied for Summary Dismissal of the Plaintiff’s claim, which related to the enforcement of a contract for the purchase of land.

Shortly before the Hearing, Justice Marion wrote to the Parties asking that they provide submissions regarding a provision of the contract which had not been materially addressed in their respective Briefs. The contractual provision related to conditions and their potential waiver.

At the Hearing, the Parties confirmed that there was no evidence regarding the waiver issue identified by Justice Marion. Further, there was a dispute between the Parties as to whether this provision had been properly pleaded by the Defendant.

Thus, at issue in this Decision was:

(1) whether the waiver issue was properly pleaded and before the Court; (2) if yes to (1), whether it would nonetheless be procedurally unfair to consider it on the Summary Dismissal Application; and (3) if yes to (2), a consideration of the appropriate path forward.

On the first issue, the Court considered that, pursuant to Rule 13.6(2)(a), only facts should be pleaded, and not evidence. Justice Marion also considered the matters which are required to be specifically pleaded under Rule 13.6(2) and (3), the matters for which particulars are required under Rule 13.7. Finally, Justice Marion observed that pleading “a statement of a point of law” is discretionary pursuant to Rule 13.8(1)(b). Given the nature of the Pleadings in the case, Justice Marion held that the waiver issue had been properly pleaded by the Defendant.

Notwithstanding that finding, Justice Marion held that the Defendant did not specifically raise the waiver issue in its Application or written argument. The Court therefore concluded that it would be procedurally unfair for that issue to be considered, at least without the Parties having had an opportunity to fully address the issue with further evidence, in addition to legal argument.

In considering Rules 1.2, 1.4, and 1.5, Justice Marion determined that the appropriate way forward was to adjourn the Application to allow the Parties to adduce further evidence and make additional argument. The alternatives, opined Justice Marion, opened the door to delay, duplication of proceedings, and wasted resources, all of which ran afoul of the Foundational Rules and the “culture-shift” in favour of summary proceedings.