3) Summary Judgment – Rule 9-6
Rule 9-6 – p.36
Summary Judgment – is a motion for final judgment (available both P and D) in chambers, on the ground that there is “NO genuine issue for trial” and that they are entitled to judgment as a matter of law
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The party who seeks summary judgment bears evidentiary burden of showing that there’s “no genuine issue of material fact requiring trial”.
Application for Summary Judgment
Rule 9-6 is for one of the parties to say that there is no real need for a trial, and that the judge can decide summarily. It’s not about a problem with the pleadings, but a problem with the evidence and facts underpinning the claim itself.
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This serves important purpose of preventing claims or defences that have no chance of success from proceeding to trial (para 3 Edgar)
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Q to ask: Is there reason to have a trial whatsoever? Or can we decide on a summary fashion, such that the Judge can deal with the matter in a simpler fashion.
SCCR Rule 9-6 – Summary Judgment
*Rule 9-6 like 9-5 (striking pleadings) have a similar goal of preventing claims w/o merit from proceeding to trial but, 9-6 is concerned with whether, based on all the material, the claim is SO factually w/o merit that it is manifestly clear that there is no genuine issue to be tried (para 9 Edgar)
Edgar v BCIT
[Differences b/w striking pleadings 9-5 VS summary judgment 9-6]
FACTS
Edgar made a presentation in his nursing class related to female circumcision, arguing it was relevant to the course material. Teacher and head of department didn’t like it. In another presentation Edgar brought up sexual content in the materials again and he signed a “learning Contract”, in protest, which threatened expulsion if he didn't stay up with standard of the faculty. He finished school, went on a practicum, and was convinced by the actions of his supervisor that he would eventually be kicked out so he quit and filed a motion.
BCIT apply for an order dismissing Edgar’s claim pursuant to rule 9-6 on Summary Judgment.
ANALYSIS
[para 3] Rule 9-6 of SCCR and serves important purpose of preventing claims or defences that have no chance of success from proceeding to trial
[9] Rules 9-5 and 9-6 are quite different. 9-5 is an attack on the pleadings on the basis that the action or the defence, as pleaded, cannot succeed as a matter of law. It raises a matter of law only. 9-6 is an assertion that the claim or the defence is factually without merit. It raises an issue of fact only or, at most, an issue of mixed fact and law, 9-6 is concerned with whether, based on all the material, the claim is SO factually w/o merit that it is manifestly clear that there is no genuine issue to be tried
[10] Rule 9-5 is concerned only with the sufficiency of pleadings. It provides in subrule (1) that the court may strike or amend any pleading, in whole or in part. Subrule (2) prohibits the filing of evidence on an application under subrule 1(a). An order striking a pleading could not be the basis for a res judicata defence in subsequent proceedings.
[11] Rule 9-6 permits an application for summary judgment, either allowing a claim in whole or in part or dismissing a claim in whole or in part. It is clear that the result sought by the application would support a future pleading of res judicata.
4) Summary Trial – Rule 9-7
Rule 9-7 – p.37
Summary Trial – is a hearing on the merits but in PAPER FORM
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The evidence comes in the way of affidavit, not live people
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Same result as if it was a live trial
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It’s conducted in a very abbreviated fashion, and the affidavit evidence is given by the parties as opposed to live witnesses in Court (to be examined/cross-examined)
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This Rule is a time-saver, and a distinctive innovation
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Summary Trials now exist for fast adjudication of matters – to avoid long and expensive trials. Merit of claims are challenged before trials and as such are decided before trials
Despite the fact that summary is in the phrase of “summary trial”; Rule 9-7 is still a FULL TRIAL (unlike 9-5 and 9-6), determined on the merits. But the only case, is a much more abbreviated procedure.
Inspiration Management Ltd v McDermid St. Lawrence (MSL)
[Whether a judgment should be granted summary trial: Rule 9-7]
*This case references Rule 18A – but today, is the same as Rule 9-7
FACTS
McGowan at IML had shares with MSL. McGowan arranged a 77k loan from MSL for which he agreed to pay 3k. McGowan was unable to pay the debt. McGowan claimed that there was an agreement in which he would give MSL shares in order to reduce his debt, and there was no date for recovery, which MSL disagrees with. When he failed to pay, MSL sold the shares. A summary trial claim was brought.
ISSUE
What is the purpose and scope of the summary trial rule?
RULE
Whether a judgment should be granted a summary trial:
On the hearing of the application, the court may grant judgment of summary trial in favour of any party either upon an issue or generally, UNLESS
(a) the court is unable on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or if it’s difficult to find facts just from the affidavits
(b) the court is of the opinion that it would be unjust to decide the issues on the application,
Factors to consider:
The greater the amt of money, the greater the need for a full trial on its merits
The urgency – would favor a summary trial
Any prejudice on having a normal trial
The course of the proceeding thus far
Any other matters that arise
and may impose such terms respecting enforcement of the judgment, including a stay of execution, as it thinks just, and may award costs.
The object of the summary trial rule is to allow for the just, speedy and efficient adjudication of a matter where justice will be done b/w the parties via use of affidavits and evidence, regardless of whether they have conflicting affidavits or not. Justice may still be done w/o a full trial, however a judge may, in their discretion, choose not to use a summary trial in the case that justice would not be done in their estimation.
ANALYSIS
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Based on the affidavits alone, there was clearly a problem with credibility and fact checking. However, just because there is an issue does not mean a chamber judge isn’t able to discern which affidavits or evidence are actually good or which actually discern a cause of action.
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Rather than use an “it makes no difference” analysis, the new approach is more nuanced, pointing out that limited cross examination can be done which may in fact be all that is necessary to determine the fate of the case. It is relatively “Easy” litigation centered around credibility and as such could be dealt with summarily. Doing it summarily also helps free up judicial resources as well as provides an easy and efficient way of adjudicating a matter.
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The case is also designed to empower judges and help them not be scared when conflicting affidavit evidence is presented. They can essentially create hybrid trials with limited examinations instead of just shipping it off to trial
HOLDING - Given leave to file again for summary proceedings
[Rule for summary trials are the same as of a trial – the judge is to apply and legal principles on the facts presented; and if that’s satisfied he can give judgment on summary trial.
Only if he can’t find liability, or that it’s unjust to do so = no judgment on SJ]
Summary Trial Rule 9-7 (18A)]
FACTS
Both arties wanted a summary trial and filed affidavits and transcripts from examinations for discovery. At the summary trial, the TJ disagreed and declined to grant judgment, on the basis that there was a conflict in the affidavit evidence that left “too many questions unanswered”.
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Parties say that the conflict in the evidence is material, and that evidence before the TJ is sufficient to determine the question of liability.
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Appealing the TJ’s decision
ISSUE
Did TJ err in not granting the summary judgment? YES, the evidence had all the facts needed to make a judgment, and the evidentiary conflict did not preclude him from doing so.
ANALYSIS & HOLDING
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TJ was required to grant judgment if the evidence on the R. 18A application provided the facts necessary to decide the issue of liability
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It is not a question of whether a full trial could conceivably “turn something up” or produce a different result.
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Rule for Summary Trial is the same as a trial (Inspiration Management)
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Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim/defence has been established, he must give judgment according to law unless he has the opinion that it will be unjust to give such judgment.
HOLDING
The evidence at the summary trial provided all the facts necessary to support the appellant’s for dismissal of claims against them
*Note: Reasons why summary trial isn’t reasonable:
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if one or more parties did not avail themselves of the discovery process or if parties have not yet exchanged documents
DISPOSITION OF AN ACTION WITHOUT TRIAL
ORDER
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Default Judgment
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Striking Pleadings
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Summary Judgment
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Summary Trial
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SCCR RULE
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3-8
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9-5 – no reasonable cause of action on the face of pleadings
pleadings lack substantive validity
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9-6 – pleadings are fine but no evidence available that would allow party making the allegations to prove them
Facts pleaded fail to disclose a genuine claim or defence b/c evidence necessary to establish a material fact cannot be proven OR a material fact alleged is untrue
“no genuine issue to be tried” at trial.
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9-7 – pleadings are fine, evidence to support BUT due to the nature of the case – court does not need to engage in full trial of merits b/c. all relevant necessary facts can be put before the court in paper form by way of affidavits
Authorizes judge to give judgement in any case where he can decide disputed facts on affidavits unless it was unjust
**Inquisitorial – judge is not precluded from finding facts where affidavits conflict
- can adjourn application/ order cross-examination/ order deponents to appear to be cross-examined
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EVIDENCE?
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No Evidence
(but you need affidavit evidence to set aside DJ)
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No Evidence – can only look at pleadings
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Evidence by affidavit
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All paper evidence (expert reports, affidavits)
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WHEN IS IT AVAILABLE?
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When the D has failed to respond to NoCC after 21 days
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Available at any time throughout process
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Available after initial exchange of pleadings between affected parties
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Available from filing of responding pleading to 42 CLEAR days before trial
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JUDGMENT
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Yes – D accepts liability
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No – no cause of action found
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Yes – judge finds that there’s no genuine issue for trial for a claim/defence, makes a decision on that
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Yes – on the merits of the case provided by the paper evidence
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- Both are available to P and D
- Originally courts took to a hard look at the merits of the case
- NOW follows jurisprudence in Dawson and Hryniak
- Due process in a civil context requires a trial wherever there are issues that require the assessment of credibility or the weighing of evidence
Disposing of the matter in Summary Form in order to be respectful of courts resources and those of the litigants.
Hryniak
- Allow for quicker resolution of matters
- Access to justice that is not as expensive as full blown trial
- Process towards achieving a just result
- Conventional trial should be last resort this is a shift
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