Pursuant to Rule 3.74(2)(b), the Defendants applied to remove one of the individual Defendants, Paul Godfrey, from the Action. In the alternative, the Defendants relied on Rule 7.3 for Summary Judgment to dismiss the claim against Godfrey.

The Court Dismissed the Defendants’ Application in its entirety. In respect of the Application pursuant to Rule 3.74(2)(b), the Court noted that the Rule expressly requires that the Court must be “satisfied the order should be made”. Tilleman J. held that this “means to me that justice requires that the application be granted”. The test to be applied in an Application under Rule 3.74(2)(b) contains an “overarching concern about fairness”.

With regard to Rule 7.3, the Court held that the evidence presented by the Defendants was insufficient as the Affidavit evidence presented did not positively swear to the facts that were required in order to illustrate that it was plain and obvious that the Plaintiff’s allegations against Godfrey could not succeed.