phillips j

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The individual Plaintiff and her corporation commenced an Action against the Defendants, a pharmacy and pharmacist, alleging professional negligence in dispensing one generic form of the Plaintiff’s hair loss medication, rather than the form of drug previously dispensed. The Defendants applied for Summary Dismissal on the basis that they were protected from liability by section 6(2) of Schedule 19 to the Health Professions Act, RSA 2000, c H-7 (“HPA”). Master Farrington denied the Application and the Defendants appealed.

Justice Phillips reviewed recent case law on the test for Summary Judgment pursuant to Rule 7.3 and confirmed that Summary Judgment should be granted where a disposition that is fair and just to both parties can be made on the existing record, but that a full Trial will be required where the Court is not confident that the matter can be fairly decided on the record “where legal issues are unsettled, complex or intertwined with facts”.

Phillips J. held that the legal and factual issues were too intertwined to be fairly decided summarily, and that the law regarding the relevant sections of the HPA was unclear. Thus the dispute regarding the appropriate statutory interpretation should be decided with the benefit of a full record. The Appeal was dismissed.

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