The Plaintiff Diocese applied for Summary Judgment for a part of the Claim against the Defendant real estate lawyer and his professional corporation. The Defendants applied to dismiss the Plaintiff’s claim for long delay pursuant to Rule 4.33.

Master Prowse stated that the evidence of the non-moving party would be deemed to be true for the purpose of the Summary Judgment Application. It was therefore not possible to say that the Plaintiff had an unassailable position that its claim would succeed. Further, even without the Defendants’ evidence, the Court would have declined to award Summary Judgment on the basis that the legal issues raised were “too intricate and novel” to be decided on affidavit evidence alone and without trial evidence. The Court held that, “even in a post-Hryniak world, where the court avoids trials unless clearly necessary”, complicated issues of law should not be decided on a limited record. Master Prowse stated that the underlying principle for Summary Judgment Applications is that they are appropriate only when the Court is confident that it can fairly resolve the dispute. Master Prowse confirmed that a full Trial is required where a summary process cannot fairly determine legal issues that are “unsettled, complex or intertwined with the facts”. The Plaintiff’s Application for Summary Judgment was accordingly dismissed.

The Defendants argued that the Plaintiff’s claim ought to be dismissed because three years had passed without significant advance in the Action. The Plaintiff replied that there were two “advances” during the three year period: a discontinuance of the Action against all Defendant lawyers other than the Defendant lawyer who was a part of this Application, and the within Application for Summary Judgment that was originally set to be heard within the relevant three year period. Master Prowse held that the partial discontinuance against some of the Defendants constituted a significant advance in the Action, as it “simplified the claim and advanced it towards trial”. Conversely, given that the Summary Judgment was originally returnable in morning chambers only four days prior to the expiry of the three year period, it did not constitute a significant advance in the Action. Master Prowse therefore declined to dismiss the Action pursuant to Rule 4.33.