Judgment Released: October 21, 2010 Link to Judgment
The Divisional Court heard an appeal of a summary-judgment motion under the new Rules where the judge’s reasons denying the motion read in full as follows: “This motion is dismissed. Submissions regarding costs may be exchanged and delivered to me within one month. There are numerous conflicts in the evidence and I am satisfied that they can be justly resolved only after a trial.”
The claim asserted that houses were negligently constructed by the defendant P, resulting in damage to the plaintiffs’ nearby homes. The plaintiffs also claimed against the new owners of the homes that P built. The plaintiffs were the moving parties on the motion for summary judgment.
The Divisional Court noted that “Rule 20.05 now grants a motions judge additional powers, in the event that a summary judgment motion is unsuccessful or partially successful, to give directions specifying what material facts are not in dispute and what issues remain to be tried, and to impose terms on the parties in relation to, inter alia, time limits for the exchange of evidence and examinations at trial.” The Divisional Court was “of the view that the reasons given by the motions judge were inadequate. In particular, he made no reference to the test for summary judgment as set out in Rule 20, and there is nothing to indicate whether he appreciated the fact that the standard is different and more flexible under the new Rules.”
However, the Divisional Court denied the appeal, finding that despite the sparseness of the reasons, the record supports the motions judge’s conclusions. It noted, among other factors, that there was conflicting evidence as to whether P was personally liable and that viva voce evidence and cross-examination would help determine the issue; that the record did not differentiate between work that may have resulted in liability to the owner defendants and work that would not have; that the amounts in the plaintiffs’ damages report, even if uncontested, were not usefully broken down; and that there was evidence that the damage claimed was pre-existing.
The Divisional Court “also consider[ed]” the fact that there was no cross-examination before the motion. It concluded that in the circumstances “it is reasonable to think that, despite the new rules, this is a case that is more appropriately dealt with by a trial, though perhaps one that is summary in nature.”
This blog’s summary of the judgment granting leave to appeal to the Divisional Court is located here.