In a dispute over the ownership of property, the Plaintiff estate commenced an Action for money paid to the Defendants and for conversion. The Defendants Counterclaimed for money owing on the property. An Application for Summary Judgment was brought and granted, but the Judgment went unpaid. While the litigation continued the property went into foreclosure and an Order for Sale was granted. An Application for Summary Judgment against the Defendant was brought before Master Hanebury. 

The Master considered Rule 7.3 which provides that a party may apply for Summary Judgment on the ground that there is no merit to a claim or part of it. The Court considered and applied cases interpreting the former Rules on Summary Judgment. The Master pointed out that the bar that must be met on a motion for Summary Judgment is high; that the obligation to prove each fact required to make out a cause of action rests with the Applicant, if they are also the Plaintiff; that the onus of showing that there is no genuine issue for Trial is also on the Applicant; the assessment of the weight and quality of the evidence is properly for a Trial Judge; and, the Court must be satisfied that there is no genuine issue for Trial – it should be “plain and obvious” or “beyond doubt”. The Master added that Summary Judgment should not be granted where opposing Affidavits do not disclose the same relevant facts. 

The Master held that the Application was not capable of being resolved summarily because the information provided to the Court was insufficient. The evidence provided did not establish whether the property was paid for in full; this resulted in uncertainty in the assessment of damages owing to the parties. As well, it was unclear as to when the title to the property was to pass or whether rent was payable. The Application for Summary Judgment was dismissed with costs in the cause.