The Applicants applied for Summary Dismissal of the Respondents’ claims.

The Court noted that Rule 7.3 allows a party to apply for Summary Dismissal where there is no merit to a claim or part of it. The Court also noted that Summary Judgment is an appropriate procedure if there no genuine issue for trial such that the Court can reach a fair and just determination on the merits.

The Respondents argued that summary dismissal was inappropriate in part because the Applicants’ Affidavit in support contained hearsay evidence. Rule 13.18(3) says that an Affidavit in support of a Summary Judgment Application must be sworn on the basis of the personal knowledge of the affiant. The Court noted that affiants can rely on information and belief in Summary Judgment Applications where the information is derived from a review of relevant and reliable documents. The Court therefore determined that the parts of the Applicant’s Affidavit where the affiant informed himself from books and records maintained by the Applicants could be relied upon for the Summary Judgment Application but disallowed evidence where the affiant informed himself based on information from other people.

The Court ultimately declined to grant Summary Dismissal. The Court noted that there were significant conflicts in the affidavit evidence on the record and found that there were credibility issues that could not be resolved without viva voce evidence. The Applicants argued that viva voce evidence could be used to address any conflicts in the evidence; the Court determined that the Rule 6.11(1) process (which identifies what evidence can be considered at Application Hearings) was inappropriate as there were numerous material conflicts in the evidence on multiple issues.