7.1: Application to resolve particular questions or issues
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff sought Summary Judgment for his Claim relating to unpaid commissions arising from a breach of a consulting agreement. In 2008, former Counsel for the Defendant prepared and filed a Consent Judgment which stated “the Plaintiffs’ claim as to liability against all of the Defendants is established as it relates to all causes of action…”. Thus, the Plaintiff in this Application sought Summary Judgment on the ground that the only real issue was the amount to be awarded. The Plaintiff sought Judgment for the sum of $1,239,000.00 based on the calculations prepared by his expert.

Lee J. stated that where there are genuine questions of fact and law relating to the assessment of damages, Summary Judgment is not available. He also noted that the test for Summary Judgment is whether there is a genuine issue for trial.

The Plaintiff argued that his Application complied with the purpose noted in Rule 7.1 of the Rules of Court, and that the Court was authorized to assess the Plaintiff’s damages and render a Judgment. The Plaintiff further asserted that quantification of the commission claim was straight forward and simply required an assessment of the number of relevant clients multiplied by 50% of the fee charged.

The Court disagreed with the Plaintiff, stating that while there were no issues regarding the expert’s accounting and valuation expertise, his report was complex and was also subject to hundreds of pages of additional Questioning and Answers to Undertakings. Further, Lee J. noted that there were many Affidavits filed in this matter, and Questioning that occurred on those Affidavits appeared to be somewhat relevant to the issue of damages.

The Court stated that, despite the fact that liability was admitted, a party must adduce uncontroverted evidence to establish a claim for damages. Lee J. concluded that the factual matrix of the relationship between the parties was such that the question of damages could not be fairly and properly determined without viva voce evidence and without findings of credibility.

In the result, Lee J. dismissed the Summary Judgment Application and ordered a Trial to determine damages.

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