Sep 10, 2015

Nova Scotia Civil Procedure Rules annotation of Rule 13.04

Burton Canada Company v. Coady, 2013 NSCA 95 (CanLII)
Rule 13.04 – Summary judgment on evidence
Appeal on a motion for summary judgment. The respondent suffered a paralyzing fall while using the appellant manufacturer's snowboard, then sued for negligence. The appellant moved for summary judgment. Held, appeal dismissed. The Rules intend that summary judgment should put a quick, effective, less costly end to claims or defences that have no real prospect of success. There was nothing 'summary' about this motion, which lasted six days and resulted in a 37-page decision being released 16 months later. Both counsel and the judge lost their way. The moving party seeking summary dismissal bears the evidentiary burden of showing there is 'no genuine issue of material fact requiring trial; the critical, underlined words were not repeated in Rule 13.04(1), which may have led to confusion in the application of the test. At stage 1 of the test, the moving party had the burden of establishing that there was no genuine issue of material fact requiring a trial. The motions judge's well-supported finding that the moving party failed to meet its burden should have ended the analysis. Stage 2—a limited inquiry into the relative merits of the parties' claims—would only have arisen if the moving party had met its burden. Where the responding party reasonably requires disclosure, production or discovery, the motions judge should adjourn. Contrary to the alternative finding of the motions judge, there is no residual discretion under Rule 13.04 that would allow a judge to refuse to grant summary judgment on the grounds that the motion was premature or not in the interests of justice.