The Plaintiff in an Action for breach of contract applied for Summary Judgment in part against the Defendant on the ground that there was no defence to a portion of the Plaintiff’s claim, pursuant to Rule 7.3(1)(a). Master Mason cited prior leading authority, and stated that the Court will consider, in addition to whether there is an issue of merit which genuinely requires a Trial, whether an examination of the existing record can lead to a fair and just adjudication for both parties. Master Mason noted that:

The standard for fairness is not whether the process is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles…

The parties must “put their best foot forward”, and the Court is to presume that the best evidence from each of the parties is before it. The non-moving party’s assertion of a position or the mere hope that something will appear at Trial do not suffice, although the onus remains on the Applicant to present “uncontroverted facts and law which entitle it to judgment”. The question before the Court is “whether the circumstances require viva voce evidence in order to properly resolve the case”.

Master Mason reviewed relevant provisions in the contract and the parties’ evidence, and concluded that the Court could not confidently grant Summary Judgment based on the record before it. Further viva voce evidence, and having the totality of evidence at Trial were necessary conditions for a final determination of the issues. The Plaintiff’s Summary Judgment Application was therefore dismissed.