The Plaintiff brought an Action against two Defendants, one of whom, Van Tassell, had  been retained as the Plaintiff’s legal counsel in a matter relating to the removal of a Lien registered by the second Defendant. The Plaintiff claimed that Van Tassell failed to ensure that a Form of Order prepared in relation to an Application before Justice Wilkins properly reflected the actual terms of the Order. Van Tassell applied for Summary Dismissal.

Master Smart held that the Rule for Summary Judgment set out in Rule 7.3 operates in the same manner as former Rule 159. Summary Judgment may be granted if the Court is satisfied that there is no merit to a Claim, if the Action is bound to fail, if the Plaintiff does not raise a genuine issue for Trial, or if the Claim has no reasonable prospect of success. Master Smart held that the Order was approved by Van Tassell ostensibly on the basis that certain comments by Justice Wilkins were not a part of the substantive Order, but were merely obiter. However, the Plaintiff led un-contradicted evidence that the interpretation and effect of those comments was expressly brought to the Defendant’s attention by the Plaintiff. By the time the Plaintiff obtained a copy of the Order, the Appeal period had expired. Master Smart held that she could not conclude that there was no merit to the Plaintiff’s Claim, and dismissed the Application for Summary Dismissal.