Summary Dismissal-Rule 9-6 (5)

Summary Dismissal-Rule 9-6 (5) | Disinherited Vancouver

Copytrack Pte Ltd v Wall 2018 BCSC 1709 reviews the law relating to summary dismissal of a claim pursuant to Rule-9-6(5) of the Supreme Court Rules of Court.

Rule 9-6 (5) provides:

5) on hearing an application under sub rule to or four, the court

a) if satisfied that there is no genuine issue for trial with respect to a claim or defense, must pronounce judgment or dismiss the claim accordingly,

b) if satisfied that the only genuine issues the amount to which the claimant party is entitled, the order a trial of that issue or pronounce judgment with a reference on an accounting to determine the amount,

c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and

d) they make any other order it considers will further the object of the Supreme Court civil rules.

A summary of these principles is set out in Watson Island Development Corporation v Prince Rupert 2015 BCSC 1474 at paragraphs 21 – 26:

21. Summary judgment may be granted on all or part of a claim under rule nine-six (5)(a) . The onus is on the applicant to prove beyond a reasonable doubt that there is no triable issue. Wong v. Wilson 2013 BCSC 1465 at paragraph 40. Another way of stating the test is whether the plaintiff is ”bound to lose” as stated in Pitt v Holt 2007 BCS C1555 at paragraph 10 ;

22. The application under rule 9-6 is based on the premise that the claim is factually without merit. It raises an issue of fact only or, at best, a question of mixed fact and law, unless the court determines under subrule (5) (c) that the only genuine issue is an issue of law, in which case the court may determine the question and pronounce judgment accordingly;

23. On an application under rule9-6 the court is not to weigh the evidence. If the evidence needs to be weighed and assess than the test of plain and obvious or beyond a doubt is not been satisfied and the application is to be dismissed.

24. An application to dismiss a claim that is bound to be unsuccessful weeds out on meritorious claims and saves the heavy price of time and cost borne by the parties and the justice system;

25. Caution must be exercised in granting summary judgment on only a portion of a claim so as to guard against litigating in slices Westsea Construction LTD v. 075-9553 BC LTD 2012 BCSC 564 . Judgment on only a portion of the claim risks multiple appeals being heard within the same action, findings been made in the absence of a full factual context, and inconsistent findings being made after further evidence is being adduced.

26. On the other hand, the resolution of an important part of the claim against the party may significantly impact the balance of the claim and provide for a timelier and cost-effective approach. Hrynaik v Mauldin 2014 SCC 7 at para. 60

In order to grant summary judgment, the court must be satisfied that there is no genuine issue to be tried. The burden of establishing that there is no genuine issue to be tried rests with the party bringing the application.

In the copy track decision, the application related to digital currency and the defendant had died thus the court viewed the appropriate remedy was to order that copy track be entitled to trace and recover the digital currency received by the defendant in whatsoever hands the digital currencies may currency be held.

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