The Application involved an Appeal of a decision from an Applications Judge. The Applications Judge granted summary dismissal of the Plaintiffs’ claim against one of the Defendants, but dismissed the balance of the application, holding that the evidentiary record was insufficient and contained hearsay evidence.

The Plaintiffs’ claim was for allegedly deficient work by the Defendants, and alleged misrepresentations by the Defendants. The Defendants appealed the Application Judge’s decision on the basis that summary disposition was appropriate given that there was no contract between the Parties and there was no evidence that any completed work was inadequate or caused damage.

The Court noted that pursuant to Rule 6.14, an appeal of an Applications Judge’s decision is a hearing on the record but may include additional evidence that is relevant and material. To that end, the Defendants provided additional Affidavit evidence that was not before the Applications Judge. The Court noted that the additional Affidavit evidence largely repeated the evidence that was previously given during the Questioning of the Defendant on their prior Affidavit.

After reviewing the record before the Applications Judge and the additional Affidavit evidence provided by the Defendants, Justice Kubik held that the Defendants had again failed to meet the standard for summary dismissal and found that there was conflicting evidence on the material facts pertaining to the identity of the contracting parties.

The Appeal was dismissed, and the Respondents were awarded costs based on Schedule C of the Rules.