The Action involved neighbours who were disputing Mr. Deguire’s construction of improvements on a portion of Mr. Burnett’s land. Mr. Deguire sued Mr. Burnett for an Order under section 69(1) of the Law of Property Act, RSA 2000, c L-7, and Mr. Burnett counterclaimed in trespass, negligence and nuisance for damages. Each Party applied for Summary Judgment of their claims and at issue was whether the evidence supported Summary Judgment.

Brown J. first noted that there was no dispute between the Parties as to the onus and test to be met for Summary Judgment; however, Mr. Deguire emphasized that conflicting evidence on immaterial facts was not a bar to Summary Judgment, and Mr. Burnett stressed that a party could not rely on self-created evidence when determining if there was a genuine issue for Trial.

Brown J., at para. 19, held that “[i]t must be ‘plain and obvious’ that the claim or defence will fail; the claim or defence must be ‘bound to fail’, or have ‘no prospect of success’, or have ‘no merit, or raise ‘no genuine issue for trial’”. After setting out the applicable test for an Order under section 69(1) of the Law of Property Act, Brown J. considered whether the evidence supported Summary Judgment for an Order under section 69(1). Regarding Mr. Deguire’s Application, the Court held that the state of evidence rendered it very likely that Mr. Deguire would succeed in demonstrating the first part of the test set out for section 69(1); however, for the second portion of test, there was some evidence from Mr. Burnett that was sufficient to defeat an Application for Summary Judgment, since it could not be held that Mr. Deguire’s position was so unassailable that the likelihood he would succeed was very high. There was clashing Affidavit evidence, and it was noted that even if no contradictory evidence was presented at Trial, Mr. Deguire’s evidence might still be found to be insufficient. The Court’s concern was with the sufficiency of the evidence, rather than the admissibility of the evidence.

Regarding the Application for Summary Judgment for the Counterclaim, Brown J. held that the plausibility and reasonableness of Mr. Deguire’s evidence was unsettled; therefore, it could not be said that it was very likely that he would fail to demonstrate the honest belief necessary for a claim under section 69(1) of the Law of Property Act. Because of this, it could not be said that it was very likely that Mr. Burnett would succeed in his claims against Mr. Deguire.

Both Applications for Summary Judgment were dismissed.