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Summary Trial Dismissed as “Unjust”

Summary Trial Dismissed as "Unjust"

Silbernagel v Olynnyk 2019 BCSC 1821  dismissed a summary trial application in the context of Rule 9-7(15) (a) (11) on the basis that it would be “unjust” to decide the issues on the application, and also discussing the courts concerns that can arise as a result of “litigating in slices.”

At issue in Silbernagel was the interpretation of an old trust deed. Of concern to the court was the effect that determining one issue by way of a summary trial procedure can at times be in the interests of justice, but determining whether it is so needs to consider whether it is truly efficient and the impact it will have on the remaining issues that are not resolved by summary trial.

As summarized in Gichuru v. Pallai, 2013 BCCA 60 at paras. 30-31, citing Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) at 215 and Dahl et al. v. Royal Bank of Canada et al., 2005 BCSC 1263 at para. 12, aff’d 2006 BCCA 369, whether it would be unjust to proceed summarily depends on the following factors:

a)    the amount involved;

b)    the complexity of the matter;

c)     its urgency;

d)    any prejudice likely to arise by reason of delay;

e)    the cost of taking the case forward to a conventional trial in relation to the amount involved;

f)      the course of the proceedings;

g)    the cost of the litigation and the time of the summary trial;

h)    whether credibility is a critical factor in the determination of the dispute;

i)       whether the summary trial may create an unnecessary complexity in the resolution of the dispute;

j)       whether the application would result in litigating in slices; and

k)     any other matters which may be relevant in the particular case.

[15]         Whether the necessary facts can be found and whether it would be unjust to decide the issues raised are separate but related questions. In some circumstances it may be unjust to decide a case summarily even if, on the whole of the evidence, it is possible to find the necessary facts: Placer Development Limited v. Skyline Explorations Ltd. (1985), 67 B.C.L.R. 366 (C.A.) at 385-386; Foreman v. Foster, 2001 BCCA 26 at para. 19; and Creyke v. Creyke, 2016 BCCA 499 at para. 45.

[16]         A party facing a summary trial must put forward all of its case or risk having judgment go against it: Liu v. Luo, 2018 BCSC 1237 at para. 33, citing Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at para. 34 and Spring Hill Farms Limited Partnership v. Nose, 2014 BCCA 66 at para. 20.

[17]         Although conflicting evidence is not necessarily fatal to proceeding summarily, where there is a conflict in the evidence regarding an important issue, and the court either cannot resolve the issue or cannot resolve the issue without assessing the deponents’ credibility, it will not be suitable for summary determination. A court cannot sidestep conflicts by relying on only a portion of the record, assuming certain facts, or by taking the plaintiff’s case at it’s highest: Concord Pacific Acquisitions Inc. v. Oei, 2017 BCSC 236 at para. 50.

The court reviewed other cases where summary trial was refused as being unjust, and typically it is where an issue in litigation is inextricably interwoven with the remaining issues.

1) Prevost v Vetter 2002 BCCA 202, in which the Court of Appeal held that determining whether a duty of care existed and was breached, in a social host liability case, was inappropriate by way of summary trial. This was because the facts necessary to decide those issues also were facts necessary to determine the outstanding issue of causation, giving rise to the potential for inconsistencies and for reconsideration of the facts when the subsequent issues were tried, all to the prejudice of the defendants;

2) Parsons v Finch 2003 BCCA 409, where the appeal court held that the chambers judge erred in determining by summary trial. The issue of whether a municipality, which issued a building permit for the building of a house owed a duty of care to the homeowners in relation to soil conditions. The court held that the summary trial determination of the issue is not appropriate, both because it did not assist in the efficient resolution of the proceeding, and because the homeowners had been deprived of the opportunity at trial of calling evidence of the standard of care, which evidence could overlap with the duty of care issue, even though the issues are distinct;

3) Kaspersky Lab Inc v Bradshaw 2010 BCSC 68 declined summary trial of amounts owing to the plaintiff under contract, by reason that a counterclaim by the defendant was barred by the contract. The court found that it would be unjust to decide the issue by way of summary trial because it was based on breach of contract, yet the counterclaim also alleged breach of contract and the issues are inextricably intertwined;

4) Tembec Industires Inc v Lucidyne Technologies Inc 2001 BCSC 802 involved an application for partial summary judgment by a defendant being sued in relation to allegedly faulty equipment it sold. The defendant argued that an exclusion clause in the contract with the plaintiff defeated the claims. The court concluded that the matter was not suitable for summary trial because the contractual limitation of liability clauses could not be considered in isolation, and a court would need to look at facts relevant to the entire context of the agreement;

5) Coast Foundation Society (1974) v Currie 2003 BCSC 1781, was also a contractual limitation of liability clause where the court refused summary trial;

Accordingly, if the evidence in relation to the issue for which summary trial is sought, and findings in relation to that evidence could have a material impact on the trial of the remaining issues, and evidence regarding the remaining issues could have a material impact on the issue for which summary trial is sought, the issues are interwoven and not easily separated.

In such a case that application judge will rarely have confidence that summary trial of a partial issue will be fair and just.

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