The Plaintiffs brought an Application for Summary Judgment.  The Court confirmed that the proper approach to summary dispositions is set out in Hryniak v Mauldin, 2014 SCC 7 (“Hryniak”). The Court noted the several key considerations set out in Hryniak. First, the Court must consider if it is possible to fairly resolve the dispute on a summary basis, or whether there are uncertainties that reveal a genuine issue requiring a Trial. Second, the Court must consider if the moving party met the burden to show that there is either "no merit" or "no defence" and that there is no genuine issue requiring a Trial. Third, the Court must consider if the resisting party has put its best foot forward and demonstrated from the record that there is a genuine issue requiring a Trial. Lastly, the Court must be left with sufficient confidence in the state of the record such that it is prepared to exercise the judicial discretion to summarily resolve the dispute. Justice Michalyshyn stated that the Application turned on the quality of the evidence relevant and material to the Application. After reviewing the evidence, His Lordship found that it was not possible to fairly resolve the dispute on a summary basis. Indeed, the evidence revealed several substantial uncertainties that raised a genuine issue requiring a Trial.

First, Justice Michalyshyn determined that the Affidavit of one of the employees of the law firm acting for the Plaintiffs added little substance. Indeed, the Affidavit merely attached excerpts of Questioning transcripts and documents produced in the litigation. Second, Justice Michalyshyn found that the Affidavit of one of the Plaintiffs was little more than opinion, unsupported by any clear or uncontradicted evidence. Third, some of the Plaintiffs’ evidence was unequivocally contradicted by the Defendants. Lastly, His Lordship found “worrying” internal conflicts in the Plaintiffs’ own evidence that were not credibly explained. 

In sum, the quality and paucity of the evidence was such that the Court did not have enough confidence in the record to grant Summary Judgment. The Application was dismissed.