This was an Application to summarily dismiss the Civil Claim of the Plaintiff on the basis that it was filed out of time. The Plaintiff was pulled over for speeding. The routine traffic stop ended with the Plaintiff pepper sprayed, handcuffed and arrested. The incident occurred on June 13, 2010, and the Plaintiff filed his claim on August 9, 2012. The Plaintiff made claims for assault and battery, wrongful arrest and detention, breach of his Charter rights, negligent investigation and malicious prosecution.

A preliminary issue arose with respect to the claims for negligent investigation and malicious prosecution. The Applicant conceded that these two claims were not out of time, but asked the Court to dismiss them on the merits. The Court stated that Rule 6.3(2)(b) requires that the Notice of Application for Summary Judgment include the grounds for making the Application. The only grounds provided in the Notice in this case were that the claim was filed out of time. The Court stated that the grounds the Applicant was attempting to rely on with respect to negligent investigation and malicious prosecution were not obvious to the Plaintiff or the Court in either the Application or the supporting Affidavit. The Court further stated that “[w]hether intentional or unintentional, ambush is not a tactic supported by the courts”. The Court declined to consider any evidence respecting these two claims.

With respect to the remaining claims, Master Hanebury stated that the test for Summary Judgment under Rule 7.3 was no longer the same as it had been under the Former Rules. A Summary Judgment Application is not confined to the test of “a genuine issue for trial” found in the Former Rules. Rather, interlocutory decisions that can resolve a dispute in whole or in part should be made when the record permits a fair and just adjudication.

After reviewing the facts of the case, as well as section 3 of the Limitations Act, Master Hanebury determined that the Plaintiff had everything he needed to determine if proceeding with the claim was warranted, on June 13, 2010. As such, the claims were out of time. Master Hanebury granted the Summary Judgment Application and dismissed the Plaintiff’s claims, with the exception of the claims for negligent investigation and malicious prosecution.