6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)

Case Summary

The Appellant sued the Respondents—a process serving company and an individual process server—for inadvertently failing to serve the Defendant in a separate Action and swearing a false Affidavit of Service which resulted in the Appellant’s separate claim being dismissed for not having been served in time. The Appellant had applied for partial Summary Judgment on the issue of liability and that Application was dismissed. The Appellant now appealed.

Before the Chambers Judge, the Appellant argued that liability could be established by either concluding that the findings in the separate Action were binding, or alternatively, by admitting the Respondents’ evidence from the separate Action and independently reaching the same conclusions. The Chambers Judge refused to admit the evidence from the separate Action. The issues on Appeal were whether the Chambers Judged erred in declining to admit that evidence, and by extension, in refusing to grant partial Summary Judgment.

The Court discussed when a party may apply for Summary Judgment in respect of all or part of a Claim pursuant to Rule 7.3(1): when there is no defence to a claim or part of it; when there is no merit to a claim or part of it; or when the only real issue is the quantum of damages. The moving party must satisfy the Court that the record allows the necessary finding of facts to be made, an application of the law to the facts, and that Summary Judgment is a proportionate, more expeditious, and less expensive means to achieve a just result.

The Court then discussed Rule 6.11(1)(f), which allows the consideration of evidence taken in any other Action if the submitting party gives the required notice and obtains the Court’s permission. The Court described the purpose of this Rule as being to overcome hearsay arguments and to allow reliance on such evidence when it would not create unfairness.

The Court held that the Chambers Judge erred by not addressing Rule 6.11(1)(f) and by not identifying why evidence from the separate Action could not be admitted. The Court held that the evidence ought to have been admitted, and so allowed the Appeal and remitted the matter back to the Court of Queen’s Bench.

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