The Plaintiff claimed that he owned an interest in a condominium development for which he was the transactional lawyer, and commenced an Action against the Defendants for a share of the profits when the development was sold. The Plaintiff applied for Summary Judgment. The Defendants asserted that the matter was not suitable for Summary Judgment.

The parties agreed that the Plaintiff advanced funds toward the purchase of the property; however, the Defendants claimed that the funds were a loan. The Plaintiff relied on several documents and agreements as support, but the Defendants asserted that the agreements were signed as part of a bundle of documents related to the impugned transaction and other transactions, and they had been signed without any explanation or advice from the Plaintiff. The Plaintiff admitted that he did not advise the Defendant to seek independent legal advice prior to signing.

Goss J. noted that Summary Judgment applications must be considered from the perspectives of both process and substance. Procedurally, Summary Judgment can be granted where the Court can make a fair and just determination based on the existing record. Where viva voce evidence is required to resolve the dispute, the matter must go to Trial. Substantively, Summary Judgment can be granted where the non-moving party’s position is without merit in fact or law, even assuming the accuracy of its position. The moving party must demonstrate that its position is so compelling, given the facts and law, that the likelihood of success at Trial is very high.

Justice Goss held that, despite the wording of the agreements being contrary to the Defendants’ assertions “some of the evidence before the Court is not inconsistent with the Defendants’ position”. As such, a fair and just determination could not be made, given the competing claims of the parties. Procedurally, the resolution of the matters required a credibility assessment upon hearing viva voce evidence. Goss J. concluded that, given the evidential ambiguity, the Plaintiff’s position was not “clearly unassailable on the facts and the law”. The Application for Summary Judgment was dismissed.