Rowbotham, wakeling JJA AND sulyma J (AD HOC)

3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff commenced an Action against his former girlfriend alleging malicious prosecution. He complained that comments made to police resulted in criminal charges being laid against him. The Defendant applied for an Order pursuant to Rule 3.68 directing that the Plaintiff’s Claim be struck, and an Order pursuant to Rule 7.3 granting Summary Judgment. In dismissing the Action, the Chambers Judge applied the former test for Summary Judgment, which asked whether there was a “genuine issue for trial”. The Majority of the Court of Appeal opined that, where the former test for Summary Judgment is met, it would follow that the more recent test under Rule 7.3 would also be met.

Wakeling J.A., concurring in the result, reviewed the leading authorities, including Hyrniak v Mauldin, 2014 SCC 7 (CanLII), and stated that Summary Judgment is appropriate if the non-moving party’s position is without merit. The position is without merit if there is a high likelihood that the moving party’s position will prevail. Wakeling J.A. concurred that the Defendant had reasonable and probable grounds for complaining to the police given the circumstances. Accordingly, the Appeal was dismissed.

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