Two Actions were consolidated for Summary Trial: a tort Action, in which the Plaintiff sought damages arising from a physical battery, and a partition and sale Application in relation to property held jointly between the Plaintiff and Defendant. The Plaintiff and Defendant engaged in a physical altercation which the Plaintiff claimed caused injuries to her shoulder and jaw, as well as post-traumatic stress. At issue in the tort Action was whether damages should be reduced by reason of provocation, as well as whether the Plaintiff’s temporal mandibular joint (“TMJ”) injury pre-existed the battery. There was conflicting evidence with regard to both the provocation and the TMJ issues.

The Parties agreed to a Summary Trial in an effort to avoid the additional delay and costs which would be involved with scheduling and conducting a conventional Trial. Justice Ross noted that the consent of the Parties, the low amount at issue, the relatively low complexity of the issues, as well as the significant delay which had already occurred all tended to weigh in favour of proceeding by way of Summary Trial. However, the fact that there was conflicting evidence required Justice Ross to proceed with caution.

Justice Ross noted that viva voce evidence may be heard at Summary Trials, and held that it was necessary in this case because resolution of the provocation issue depended almost entirely on the credibility of the witnesses. Viva voce evidence was heard respecting this issue alone. While there remained conflicting evidence on other issues, Justice Ross found that there was sufficient evidence to make the necessary findings of fact. Particularly, with regard to the medical evidence concerning the Plaintiff’s TMJ injury, Justice Ross found that the Plaintiff’s medical records coupled with the reports created by the medical experts were sufficient to make factual findings on a balance of probabilities. Additionally, the fact that one expert’s diagnosis was tentative tended to reduce the amount of actual conflict between the two experts. Justice Ross held that Summary Judgment on this issue would be appropriate.

With regard to the partition and sale Application, Justice Ross held that the conflicts in evidence could be relatively easily resolved within the confines of Summary Trial given that credibility was not a real concern. Documentary evidence, or the lack thereof, and reliance on the onus of proof, was sufficient to resolve these conflicts.