This Action was scheduled for determination under the Summary Trial Rules pursuant to a previously granted Consent Order (the “Consent Order”). The Plaintiff sought a direction varying the Consent Order to permit the matter to proceed under the Streamlined Trial Rules.

Eamon J. commented that the Streamlined Trial Rules and the repealed Summary Trial Rules are similar, but with an important difference. Unlike Rule 7.9 (repealed), the Streamlined Trial Rules require the hearing Justice to grant Judgment at the conclusion of the Trial. Streamlined Trials under the new Rule are scheduled through case conference to ensure the matter is appropriate for a Streamlined Trial with the necessary processes for a fair Trial.

Justice Eamon took note of the amendment to the Rules of Court which replaced Summary Trials with Streamlined Trials and held that such amendment permits the Court to vary a hearing Order that was made under the Summary Trial Rules. Procedural Orders can be varied under Rule 9.15(4) in the interests of justice.

Eamon J. stated that the test for a Streamlined Trial, as codified in Rule 8.25 (the “Test”), is similar to the test for whether a Summary Trial is appropriate: (1) whether the Court can decide disputed questions of fact on Affidavits or by other proceedings authorized by the Rules for Summary Trial; and (2) would it be unjust to decide the issues in such a way?

Having applied the Test to the matter, the Court concluded that the matter satisfied the requirements of fairness, justice, and proportionality set out in Rule 8.25(1). Specifically, the Defendant was not in any way prejudiced by continuing the agreed-on Summary Trial as a Streamlined Trial under the amended Rules.

Furthermore, it was found that there were some factors in this matter that favoured a finding of fairness, justice, and proportionality. These factors included: (a) the amount involved was relatively low; (b) the number of potential witnesses was small; (c) the matter was not complex; (d) there were specific requirements of burden of proof and corroboration that protect the Estate’s interests; (e) the matter was long standing given the Trial of the issue was directed more than 4 years 3 months before the Trial; (f) both sides had a fair opportunity to put forward evidence and neither have identified any potential evidence for which they have not had a fair opportunity to adduce; (g) the parties were elderly and the matter should be resolved without further delay; and (h) the evidence in the record was sufficient for a Streamlined Trial.