The parties were estranged family members who were involved in a long-standing series of transactions and related disputes about a family-owned company. The Plaintiffs ultimately commenced a Claim against the Defendants, alleging, among other things negligence, misrepresentation, and breach of duty. The Defendants denied the Plaintiffs’ Claim in its entirety, and brought a Summary Dismissal Application under Rule 7.3. The Defendants alleged that the Claim was statute barred by the Limitations Act, RSA 2000, c L-12, and that the Claim was extinguished by an earlier mutual release signed by all parties.

Justice Millar considered Rule 7.3, and noted that the test for Summary Judgment requires the Court to determine whether there is sufficient evidence to make a decision on the basis of Affidavit evidence alone. If the Affidavit evidence before the Court is sufficient for the issues to be adjudicated fairly and justly without a Trial, then the Court may decide the issues on their merits. The onus is on the Defendant to establish that there is “no merit” to the Plaintiff’s Claim. After this onus is discharged, the evidentiary burden shifts to the Plaintiff to refute or counter the Defendant’s evidence, “or risk summary dismissal”. In this case, Millar J. stated that there were no material and relevant factual disputes that required viva voce evidence. Therefore, the Court was satisfied that it was fair and just to decide the issues on their merits.

Millar J. held that the Plaintiffs ought to have known that they had a claim two years before filing the Statement of Claim in this case. The Defendants’ limitations defence was “so compelling that the likelihood it will succeed is very high”. Similarly, the mutual release between the parties was valid, and the Defendants had shown that there was no merit to the Claim which was extinguished by the mutual release. Justice Millar held that the claim ought to be summarily dismissed on both grounds, and granted the Defendants’ Application accordingly.