Summary judgment rule in child protection matter

71. DCFS v A.S. & D.P. 2014 NUCJ 13:

    [71]  Rules 174-184 are the Rules that deal with summary judgment. Although the rules have not been applied in Nunavut to a child welfare matter they have been applied in other litigation. I summarized the rules at paragraphs 17-21 in Nunavut Tunngavik Inc. v Canada (Attorney General), 2012 NUCJ 11, [2012] NuJ No 16 [NTI]. I adopted the test set out below by Vertes J. in Norn v Stanton Regional Hospital, [1998] N.W.T.J. No. 88 at para 17, 26 CPC (4th) 276:

    The test on a summary judgment motion is well-known. The motions judge must take a hard look at the evidence to determine whether there is a genuine issue for trial: see 923087 N.W.T. Ltd. v. Anderson Mills Ltd., [1997] N.W.T.R. 212 (S.C.), at pages 221 - 223. If there is no genuine issue for trial, the court must grant summary judgment: Rule 176(2). And, if the only genuine issue is a question of law, the court may, not must, determine that question and grant summary judgment: Rule 176(4). The "genuine" issue is usually one of fact or one of mixed fact and law, but it may also be one of pure law where, as here, the state of the law is in flux. The case law, even while recognizing that a summary judgment motion is an effective way of avoiding expensive and lengthy litigation, demands that it must be clear that a trial is unnecessary to resolve the issues. (NTI at para 21)