master robertson

6.6: Response and reply to application
7.3: Summary Judgment (Application and decision)
9.15: Setting aside, varying and discharging judgments and orders
13.18: Types of affidavit

Case Summary

The Plaintiff shipped several vehicles to the Defendant for sale at auction, and commenced an Action when the Defendant failed or refused to pay the proceeds of the sales to the Plaintiff. Adesa Auctions counterclaimed against Noushin and other related persons claiming that they were involved in a scheme to roll back the vehicles’ odometers which resulted in damages to Adesa Auctions. Noushin and the other Defendants by Counterclaim were noted in default, and they applied to set it aside. Adesa Auctions cross-applied for Summary Judgment.

Master Robertson noted that the Court must look closely at the record in order to determine if a fair and just decision can be made on the existing record. Master Robertson considered an Affidavit filed by one of the Defendants by Counterclaim which made self-serving and unsupported assertions about the vehicle’s odometers. Master Robertson noted that the Affidavit was filed four days after Adesa Auctions’ brief for the Summary Judgment Application which was not a “reasonable time” for the purposes of Rule 6.6(1) or Practice Note 2. Master Robertson stated that a “self-serving general denial of wrong-doing is not sufficient” to oppose a Summary Judgment Application. The Respondent in a Summary Judgment Application must put their “best foot forward” to show why Summary Judgment should not be granted.

Some of Adesa Auction’s Affidavit evidence was hearsay which did not satisfy the requirements for Rules 7.3 or 13.18(3). However, Master Robertson held that the balance of Adesa Auction’s evidence met the “business records” hearsay exception, so there was no question about the records’ veracity. Master Robertson concluded that the evidence, read together, presented a “very clear picture” of Noushin’ s actions, and those of the other Defendants by Counterclaim. Accordingly, the Application for Summary Judgment was granted against all but two of the Defendants by Counterclaim, and the Cross-Application to set aside the Noting in Default was dismissed.

View CanLII Details