Summary judgment is extremely popular at present, given the Supreme Court of Canada's new receptive philosophy. And the topic extends beyond summary judgment. Many times in chambers there is a big issue over whether a judge can decide topics on affidavits, or whether trial of an issue, or a full trial, will be needed. Some of the tests for that are set out in Liu v. Hamptons Golf Course 2017 ABCA 303, Calg 1701 0118 AC (Sep 22).
The Court of Appeal goes into a lot more detail about a summary judgment motion faced with conflicting evidence, in Goodswimmer v. A.-G. Can.2017 ABCA 365 (Nov 6). There seems to be a little conflict in Alberta Court of Appeal decisions on the general subject. But even if one does not try to read the Goodswimmer decision as binding authority, it contains a good shelf full of methods which might still let you get a summary disposition despite some use of second-hand information, and despite one or two statements in opposing affidavits which tend against your case. Here is a list of those methods.
a. The chambers judge can draw reasonable inferences from the evidence, and make fact findings.
b. Though hearsay is forbidden to support a summary disposition, a large organization can provide evidence from someone familiar with its accounting and other business records and how they work, who has examined what the records tell in this case. That is the only way to get evidence of old historical facts, and a trial could get no better evidence.
c. Though hearsay is forbidden, a record introduced just to show that it exists, or to show that some step was taken, not to prove the truth of its contents, is often not hearsay.
d. The parties’ conduct and corroborating evidence, may be used to shore up some other evidence and to weaken competing evidence.
e. A bare denial or bald self-serving assertion is often not enough to bar summary disposition, even if it is under oath from someone who should know the facts first hand. Especially if it is contrary to a considerable amount of other detailed evidence.
f. What is a genuine issue requiring a full trial is not decided mechanically; the judge must look (inter alia) at the weight and reliability of the evidence, the importance of the contested issue, and the likelihood that a full trial would receive better evidence.
g. Deciding despite a conflict in the affidavits may well be less serious if there is no issue of credibility, if the affidavits are relevant and admissible.
h. Conflicts in the affidavits about legal opinions, inferences, or subjective interpretation of documents, not about facts, may not bar summary disposition.
i. A chambers judge is not forced to rely upon information from highly suspect sources, nor pure hearsay, nor a misleading selection of documents taken out of context, nor pure inferences when the judge could draw his or her own inferences.
j. The judge need not rely upon a mere subjective opinion inconsistent with extensive documentary evidence.
That list is drawn from Goodswimmer v. A.-G. Can., supra.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
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