7.3: Summary Judgment (Application and decision)

Case Summary

This Appeal concerned the granting of Summary Judgment pursuant to Rule 7.3(1)(b), involving Summary Judgment when a Claim has “no merit”.

The Majority of the Court indicated that such an Application has two steps (these steps were expressly agreed to by McDonald J.A. representing the Dissent). The first step is that the moving Party must adduce evidence to show there is no genuine issue for Trial; if there is no genuine issue for Trial, there will be no merit to the Claim. Fraser C.J.A. (for the Majority) indicated that this step is a high threshold to meet. If the evidentiary record establishes either that there are missing links in the essential elements of a Cause of Action or that there is no Cause of Action In Law, then there will be no genuine issue for Trial. Her Ladyship pointed out that “no genuine issue for Trial” must be proven, and that relying on mere allegations or the pleadings will not suffice.

The second step is that once the burden on the moving Party has been met, the Party resisting the Application may adduce evidence to persuade the Court that a genuine issue remains to be tried. What this effectively means is that the resisting party must show that the Claim has what is often referred to as “a real chance of success”. A real chance of success may be accomplished by establishing the existence of disputes on material questions of fact, including inferences to be drawn from such questions of fact, or on points of law that cannot be readily resolved given the factual disputes.

McDonald J.A. indicated in the Dissent that what the above steps for Summary Judgment ultimately devolve to is a question as to whether there is “no merit to any of the alleged Causes of Action”.

View CanLII Details