The Plaintiff commenced an Action in relation to a failed business venture which supplied building materials in BC and Alberta. The Defendants counterclaimed, and the Plaintiff (Defendant by Counterclaim) applied to summarily dismiss the Counterclaim against them, arguing that there was no merit to the allegations.

Nielsen J. considered Rule 7.3 and the relevant leading authorities relating to Summary Judgment, and summarized the test for Summary Judgment as follows:

[…] if a judge on a summary judgment application can make the necessary findings of fact, is able to apply the law to the facts and the process is proportionate, more expeditious and less expensive than a trial, summary judgment is appropriate. If a fair and just adjudication can be made in determining whether a claim has merit, it is appropriate for a court to consider summary judgment. A party’s position is without merit if the facts and law make the moving party’s position unassailable. A party’s position is unassailable if it is so compelling that the likelihood of success is very high. The key is whether the circumstances require viva voce evidence in order to properly resolve the case.

Justice Nielsen further stated that, if the ultimate outcome of a case depends on the interpretation of a document, the test for Summary Judgment is whether the issue of law can fairly be decided on the record before the Court. In this case, Justice Nielsen held that viva voce evidence was required to properly resolve the issues in the Counterclaim, and therefore it was not fair and just to grant summary dismissal of the Counterclaim sought by the Plaintiff. The Application was accordingly dismissed.