The Plaintiff in the underlying Action (“Ms. Barclay”) appealed the Decision of the Provincial Court Trial Judge dismissing her claim in negligence against the Defendant Kodiak Heating & Air Conditioning Ltd. (“Kodiak”) (collectively, the “Claim”). The Trial Judge found that there was no merit to the Claim. In particular, the Trial Judge held that Ms. Barclay did not specify a cause of action in the pleadings, and the facts did not suggest one. The Trial Judge concluded by finding that a fair and just adjudication of the Claim was to summarily dismiss the Action by Ms. Barclay against Kodiak pursuant to Rule 7.3.

Nixon J. noted that in making their decision, the Trial Judge can only consider the evidence before it and that it would be an error of law for that Court to make a decision that is based on alleged facts that are not in evidence. Justice Nixon reviewed Ms. Barclay’s pleadings and Affidavits that were before the Trial Judge and found that they did not raise particulars of any negligence or breach of contract. His Lordship found that the pleadings only stated that Kodiak was bound by an alleged warranty that was not in evidence. Accordingly, Justice Nixon concluded that the factual record before the Trial Judge was sufficient to allow her to summarily dismiss the Claim. In this regard, His Lordship found that there was no palpable and overriding error in respect of the Trial Judge’s assessment of the factual record before the Court and therefore dismissed the Appeal.