master schlosser

6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)
10.42: Actions within Provincial Court jurisdiction
13.18: Types of affidavit

Case Summary

This Action was commenced under the Builders’ Lien Act; however, Master Schlosser approached the Application as an Application and Cross-Application for Summary Judgment on the Claim and Counterclaim. Master Schlosser noted that, in such an Application for Summary Judgment, it was critical to consider the applicable principles of evidence:

1.   The legal burden is on the applicant throughout; in this case, on the lien claimant for the claim and on the owner for the deficiencies[.]

2.   Once the party with the primary burden has discharged their evidentiary burden, an evidentiary burden then passes to the respondent. This engages various obligations like the requirement to put your best foot forward or to suffer various inferences, and possibly defeat.

3.   In this case, the parties had consented to resolution based on affidavit evidence that sometimes conflicted (Court of Queen’s Bench Act, section 9(3)(b)).

4.   If consent had not been given, the court, could (in addition to the sort of things set out in 121, above):

. . . assume the relevant facts asserted by the party opposing the summary judgment application and determine whether the law permits judgment on those facts.

Master Schlosser observed that the Court has some additional “evidentiary tools” at its disposal, including that unsworn evidence or unqualified opinion evidence is inadmissible or of little value (Rule 6.11), and that first-hand evidence is required for the party with the primary legal burden (Rule 13.18). The Court reviewed and summarized each of the matters in dispute between the parties, resolving each. As there was mixed success, Master Schlosser awarded Costs to each party in accordance with Rule 10.42, and set off the Costs awards in favour of the Plaintiff.

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