Jerke J

1.5: Rule contravention, non-compliance and irregularities
3.68: Court options to deal with significant deficiencies
6.14: Appeal from master’s judgment or order
7.1: Application to resolve particular questions or issues
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiffs/Appellants applied to strike portions of the Statement of Defence under Rule 7.1(3), and alternatively, for Summary Judgment on the issue of liability in a claim for damages arising from wrongful imprisonment and breach of sections 7 and 12 of the Charter of Rights and Freedoms. The Appellants relied on their successful habeas corpus Applications as proof of liability under the Action, claiming that the Defendant could not assert a defence to the civil Action because of the doctrine of issue estoppel. The Master held that the doctrine of issue estoppel did not apply, and dismissed the Application. The Appellants appealed that Decision.

The Respondent filed an Affidavit on the Appeal, containing additional evidence consisting of the transcript and records from the habeas corpus Application. Justice Jerke noted that Rule 6.14 permits the Court to consider additional relevant and material evidence on Appeal from a Master’s Decision. Justice Jerke found that the evidence pertaining to the habeas corpus Application was relevant and material to the issues on Appeal and therefore relied upon it. Justice Jerke also noted that several paragraphs in the Appellants’ Affidavits were improper pursuant to Rule 13.18, as they contained argument, not evidence.

Justice Jerke held that Rule 7.1(3) was inapplicable to the present circumstance as it applies to determinations made during the Trial of an issue: it does not apply to determinations made in a separate proceeding. Justice Jerke also noted that Rule 7.1(3) does not permit striking out a Statement of Defence, only striking a Statement of Claim or requiring an amendment to a pleading. Jerke J. noted that the correct Rule was 3.68, and relied on the Court’s power under Rule 1.5 to rectify non-compliance or irregularities with the Rules, and so considered the Application as one brought under Rule 3.68, and not Rule 7.1.

Justice Jerke found that the nature of a habeas corpus Application requires the Respondent to demonstrate that it provided a high level of procedural fairness after the Applicant has demonstrated a detention or loss of residual liberty and a basis or legitimate ground for why the detention was unlawful. Because of that nature, a determination under a habeas corpus Application does not make findings of fact. Jerke J. held that the Appellants’ causes of action required proving a factual foundation and thus, that the habeas corpus Application did not estop the Respondent from claiming justification as a defence to the claims. Justice Jerke dismissed the Application to strike.

Justice Jerke confirmed that Summary Judgment will be appropriate where the trier of fact can make the necessary findings of fact, apply the law to the facts, and where the process is a proportionate, more expeditious and less expensive means to achieve a just result.  Justice Jerke also noted that the facts need only be proved on a balance of probabilities, but that establishing the facts to that standard is not a proxy for summary adjudication, which requires proving no genuine issue requiring Trial.

Justice Jerke found that the evidence on the Appeal did not establish the elements of the torts or Charter breaches alleged independent of the fact that the habeas corpus Application was brought and granted. Justice Jerke found that the claims in the Appellants’ Affidavits that they were “unlawfully” placed in administrative segregation in breach of their Charter rights were mere bald assertions and/or inadmissible opinion evidence. As a result, Justice Jerke found that the evidence fell “far short” of that required to demonstrate that there is no merit to the Respondent’s defence, and as such, the Application for Summary Judgment was dismissed.

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