The Action was set for Trial. The Defendant then applied for Summary Judgment dismissing part of the Plaintiff’s claim.

Eamon J. first discussed Rules 8.4 and 8.5, which set out the requirements that parties must meet before setting a matter down for Trial. The parties are required to file a Form 37, but Eamon J. noted that Form 37 actually does not speak to the requirement that parties certify that all Applications have been disposed of prior to setting a matter down for Trial. If the parties are unable to certify that they have completed all required steps under Rule 8.4(3), Rules 8.4(5) and (6) provide that the Court Clerk may still set the matter down for Trial if the Court Clerk is satisfied that the parties will complete the required steps in a timely fashion.

A Justice may also set the matter down for Trial under Rule 8.5 even if the parties are lacking the certifications required under Rule 8.4(3), so long as the Justice has either waived the missing requirements, is satisfied that the requirements will be completed, or has given directions to the parties to complete the requirements.

If a Justice makes a procedural Order to the parties to complete the requirements, then the Justice may also require, as a pre-condition, that the parties self-report any failure to meet the requirements, and any failure to meet the requirements may also result in loss of the Trial date.

Eamon J. then discussed the possibility of bringing a Summary Judgment application after the parties have filed a Form 37. In citing Veit J. in a prior decision, Eamon J. noted that while Form 37 does not closely track the wording of Rule 8.4(3)(i), the substantive meaning is still that no further Applications may be brought after a Trial date has been set.

The Defendant argued that the wording in Rule 7.2 allowed them to bring a Summary Judgment Application at “any time in an action”. In response, Eamon J. cited Gates J.’s prior decision, in which Gates J. had held that the language of Rule 7.2 provides that Summary Judgment remains an option at any time in a proceeding, but does not state that leave of the Court is not required to bring that Application.

Eamon J. then discussed th   e policy rationale behind Rule 8.4, which is to ensure that the Court’s Trial capacity is efficiently used. Late pre-Trial proceedings could have the effect of jeopardizing Trial dates and affect allocation of the Court’s resources. Eamon J. also rejected the test in Ontario for bringing Applications after a Trial date is set, which required a substantial and unexpected change in circumstances. Eamon J. held that some Applications are better brought late than never, such as an Application to amend pleadings.

Eamon J. then held that even if permission was not required to bring the Summary Judgment Application, he had authority under Rule 4.14 as Case Management Judge to bar the Application. His Lordship ultimately found that granting leave to bring the Summary Judgment Application would prejudice the Plaintiff. Conversely, there would be little efficiency gained by allowing the Summary Judgment Application to proceed.

Eamon J. held that the Defendant would not be granted leave to bring the Summary Judgment Application. In the alternative, if leave was not required, then His Lordship would bar the Application in any event through his authority as Case Management Judge.