Summary Judgment Explained -- New Brunswick

Rule 22 of the New Brunswick Rules of Court is similar to Rule 20 in Ontario. It allows for summary judgment where:

22.04 Disposition of Motion

Where No Defence or Merit to Action

(1) Where, on a motion for judgment, the applicant satisfies the court that

(a) there is no defence or merit to a claim or part thereof, and

(b) the applicant is entitled to judgment, the court may grant judgment.

The recent Court of Appeal decision in Kennedy v. HSBC Bank Canada, 2008 NBCA 48 reviews the law on summary judgment and gives a useful overview especially where the main issue is whether the moving party has met their burden of going forward.

The Court holds:

[11] This Court’s decision in Cannon v. Lange et al. (1998), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (QL), not only articulates the purpose of Rule 22, to “secure the just, least expensive and most expeditious determination of [the] proceeding on its merits” (para. 8), but also the ways by which the application of the Rule accomplishes that purpose. While admonishing “motion judges not to be unduly timid where the circumstances demonstrate a clear absence of merit” (para. 9), Drapeau, J.A., now C.J.N.B., recognized that notwithstanding the rule “confers a wide [judicial] discretionary power”, the exercise of such discretion requires the application of a “stringent test before the drastic remedy of summary judgment can be granted” (para. 16). He emphasized such test in para. 17: The wording of Rule 22.04 sets the standard at a high level. It provides that the court may grant judgment only where there is no merit to the defence or no merit to the claim, or part thereof. The wording leaves no room for anything but a very stringent test. Practical experience with the civil process inspired the trial lawyers and judges who drafted Rule 22.04 to choose its wording. The wording reflects their conviction that, except in clear cases, the best truth-finding device is a trial.

[12] Relating the Cannon v. Lange stringent test to the circumstances of this case, the motion judge was required, before granting summary judgment, to find there was no merit to Mr. Kennedy’s defence, that is, no question about what a trial judgment would be, and that HSBC’s case had to be unanswerable.

[13] In that context, the motion judge had an obligation “to consider not only the pleadings, but also any admissible evidence”: see paras. 21 and 22 in Cannon v. Lange. Ultimately, “the Court’s ability to [determine the motion] will necessarily depend on the nature and quality of the evidentiary record which the parties can place before it”.

[14] Concerning either party’s preparation when seeking or opposing an application for summary judgment, Cannon v. Lange bluntly alerts each to the threshold that must be hurdled for success. Paragraphs 23 and 24 prescribe:

Common sense should move the parties to put their best foot forward on a motion under Rule 22. Such a course of conduct is particularly wise for a respondent, since he or she has the most to lose. As stated by the Ontario Court of Appeal in 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 at 557 in a vernacular expression, the respondent "must lead trump or risk losing." It will rarely be sufficient for the respondent to promise that evidence, which is admissible pursuant to Rule 39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produce admissible evidence which will prevent a conclusion that the action or defence is bereft of merit. I have no doubt that, where the ends of justice require, the court will allow all appropriate accommodations including leave to file further affidavit evidence.

It is up to the moving party to satisfy the court that an apparent factual controversy or credibility conflict is a sham. If material facts remain genuinely in dispute after the court has taken a hard look at the evidence and the pleadings, it is not appropriate to grant summary judgment (see RCL Operators Ltd.). Likewise, where there is an unresolved genuine credibility conflict relating to a material question, it is not appropriate to grant summary judgment.