This was an Appeal of an Order by Sullivan J. dismissing an Application for Summary Judgment on the basis that there were material evidentiary issues to be determined at Trial.

The Plaintiff negotiated with Penn West for the purchase of a wind generating project.  The Plaintiff required funding for the purchase and approached the Defendant for financing.  The Plaintiff forwarded confidential information about the project to the Defendant, and the parties subsequently signed a Confidentiality Agreement.  The Plaintiff sent a second offer to Penn West.  The Defendant then negotiated a deal directly with Penn West at the same price as the Plaintiff’s offer.  The Plaintiff sued for breach of confidentiality and unjust enrichment.

The Defendant brought a Summary Judgment Application pursuant to Rule 7.2, which permits the Court to give Judgment where admissions of fact are made in a pleading or otherwise, or the only evidence consists of records and an Affidavit is sufficient to prove authenticity of the records in which the evidence is contained.  The Defendant submitted that Summary Judgment should have been ordered under Rule 7.3 because there was insufficient documentary evidence to support the claim.  The Chambers Justice dismissed the Application, stating that there was evidence produced by both parties that identified issues of material fact that could only be determined at Trial.

The Court of Appeal affirmed the Chambers Justice’s Decision to dismiss the Application stating that “as the chambers judge noted, the issue of whether there was an understanding between the parties and whether it fell within the rubric of the Confidentiality Agreement were triable issues”.