The Defendant owned farm land which was sold for the development of a proposed subdivision. The lands were contaminated and the Defendant agreed to remediation with the new owner. The Plaintiff completed the last steps of the remediation but the Defendant refused to pay its bills, on the basis that he had no contract with the Plaintiff for such work. The Plaintiff commenced the Action and then applied for Summary Judgment, arguing that it had an agreement with the Defendant through a third party to authorize the work. The Defendant cross-applied for Summary Dismissal of the Claim. Affidavits were filed by the Defendant and by the Plaintiff’s representative. Transcripts were filed from the cross-examination of both parties, and from two other individuals who were examined under Rule 6.8.

Master Hanebury observed that the test for an Application for Summary Judgment is that the Application should be granted where no genuine issue for Trial exists. Rule 7.3 provides that Summary Judgment may be granted if a disposition that is fair and just to both parties can be made on the existing record. The question is whether there is in fact any issue of “merit” that genuinely requires a Trial, or conversely whether the claim or defence is so compelling that the likelihood that it will succeed is very high, such that it should be determined summarily. The legal or persuasive burden is on the Applicant throughout. The authorities are clear that the Court is to assume that the best evidence from the parties is before it.

Master Hanebury commented that issues of credibility generally cannot be decided summarily and require a Trial. In rare cases, where one party’s evidence on the material facts is destroyed as a result of other evidence or on cross-examination so that it is “completely non-credible”, the Court may “accept certain facts or may draw inferences of fact”. Master Hanebury found that the Defendant’s evidence left the impression of evasiveness, but this was insufficient to find his evidence “completely non-credible”. In the result, Master Hanebury held that it would not be a just resolution of this case to either allow or dismiss the claim at this stage of the proceedings.