The Plaintiff brought an Action for defamation that was set for a three week Jury Trial commencing February 16, 2016. The matter was set down for Trial by agreement under Rule 8.5. The Plaintiff retained new Counsel after the matter was set down for Trial. The Plaintiff sought leave to bring an application for Summary Judgment prior to the Trial.

The Defendant argued that section 17 of the Jury Act, RSA 2000, c J-3 precludes an applicant from seeking Summary Judgment or Dismissal after a Jury Trial has been set. Justice Gates rejected this argument. The Defendant also argued that a jury trial is a factor that must be taken into consideration when determining whether to grant the Plaintiff leave to bring their Summary Motion. Justice Gates rejected this argument and noted that the fact that a matter has been set down for trial by Jury should have no bearing on a decision regarding leave to bring a Summary Motion after a matter has been set down for Trial.

The Plaintiff argued that a Summary Motion as this stage could save judicial resources. Justice Gates noted, however, that the Plaintiff was unwilling to provide any firm commitment that they would abandon the balance of their Claim if successful on their Summary Judgment motion. Justice Gates also went on to note that a partial Summary Judgment motion on the eve of a jury trial would not create greater judicial economy and would in fact create a complex and messy process. Justice Gates also noted that prior Counsel had agreed that there were no further interlocutory matters, and that subsequent Counsel was now bound by this commitment.

Justice Gates also noted that there would be numerous scheduling difficulties attempting to run a Summary Dismissal motion prior to a Jury Trial and that the potential prejudice to the Defendant could not be adequately compensated by costs. Justice Gates also noted Rule 8.6 that provides a list of justifications for abandoning or adjourning a trial date and noted that none of these were present, or argued, in this Action.