3.2: How to start an action

Case Summary

The Applicants commenced the Action by way of Originating Application to obtain title to certain lands that were in the name of the Respondent. Two issues arose before the Court: (1) whether an Originating Application was the proper method to resolve the matter; and (2) if so, whether title to the lands should be transferred to the Applicants.

Justice Loparco refused to transfer title to the lands but converted the Applicants’ claim into a Statement of Claim and allowed the Action to continue. The Originating Application did not allow for a fair and just adjudication of the matter. There were material facts in dispute and the parties’ credibility was a live issue.

Rule 3.2(2)(a) prescribes that an Action must be commenced by Statement of Claim unless there are no substantial factual disputes, in which case the Action may be commenced by Originating Application. Rule 3.2(6) contemplates that if an Action is started in one form when it should have been started or should continue in the other form, the Court may correct it and allow the proceeding to continue.

Justice Loparco noted that Originating Applications cannot be used to resolve matters with substantial facts in dispute and gaps in the record. The onus is on the party opposing the Originating Application to show that there are material facts in dispute. It can adduce evidence by cross-examining the Applicant’s Affiant or relying on material filed by the Applicant.

The Court noted that the material facts in dispute related to the terms of a land agreement and whether parol evidence should be considered. The transaction in question was a deal between old friends, purportedly varied by oral conversations between a now deceased party to the transaction and the Respondent’s principal. Further, the Court would benefit from a more complete discovery process and viva voce evidence at Trial so that credibility may be assessed.

Relying on Rule 3.2(6), Loparco J. allowed the Action to continue as if it was originally started by Statement of Claim.

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