Rule 9-7 of the Supreme Court Civil Rules
A review of Rule 9-7 (Civil rules) / or the parallel Rule 11-3 (Family rules) should be undertaken in its entirety, although this review series will only refer to key sections of Rule 9-7.
One of the considerations that must be analyzed when proceeding with a Summary Trial application is whether the subject case is appropriate for summary disposition. Having a strong comprehension of the rules and the legal principles will allow you to have a better understanding of this process. We will discuss this in detail.
Rule 9-7 (2) and (15) – are common provisions often referenced by the courts in Summary Trial applications. This post will focus on these two subrules.
Rule 9-7 (2) provides:
(2) A party may apply to the court for judgment under this rule, either on an issue or generally, in any of the following:
(a) an action in which a response to civil claim has been filed;
(b) a proceeding that has been transferred to the trial list under Rule 22-1 (7) (d);
(c) a third party proceeding in which a response to third party notice has been filed;
(d) an action by way of counterclaim in which a response to counterclaim has been filed.
We review the words “either on an issue or generally” in 2. above. This allows an applicant to apply to court under Rule 9-7 on an issue that may be severed from other issues that will proceed to a conventional trial. We will review the test for severance in a further post on Case Law Corner. (Search “severance” in the “Menu” for more information.)
(15 ) On the hearing of a summary trial application, the court may
(a) grant judgment in favour of any party, either on an issue or generally, unless
(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the application,
(b) impose terms respecting enforcement of the judgment, including a stay of execution, and
(c) award costs.
Rule 9-7 (15) provides a two-part test. Both factors in 9-7(15) (a) must be satisfied in order for a Court to conclude that a final Order can be issued. This is a discretionary function of the Court.
Also note the language in (15) “the court may grant judgment….” which provides the BC Courts with the discretionary authority to determine if a matter is appropriate for hearing under this rule, which was discussed in the decision referenced in N.J. v. Aitken Estate, 2014 BCSC 419 (CanLII).
In Nygard v. Continental Steel Ltd., 2018 BCSC 541 (CanLII) the Court states:
A case may have triable issues and disputed facts, but this does not resolve the question of suitability — a summary trial is a trial, and it is a process that is often capable of resolving disputed facts: Gichuru v. Pallai, 2013 BCCA 60 (CanLII) at para. 30. Justice Karakatsanis, writing for the Court in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), urged a robust attitude to applications aimed at summary resolution so as to promote proportionality and access to justice. Soon after introduction of a summary trial rule in British Columbia over 30 years ago, our Court of Appeal delivered a similar message: Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.).
In 1061403 BC Ltd. v. Canada Willingdon Holdings Ltd., 2018 BCSC 1067 (CanLII) the Court states:
 …..the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of summary trial to determine an action (or issue), is a discretionary one. Appellate deference is given to the exercise of discretionary powers in the absence of a clear conclusion that the discretion has been wrongly exercised, in that no weight or insufficient weight has been given to relevant considerations (see Creasey v. Sweny (1942), 57 B.C.R. 457 at 459 (C.A.); Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC),  1 S.C.R. 3 at para. 104; Stone v. Ellerman, 2009 BCCA 294 (CanLII), 92 B.C.L.R. (4th) 203 at para. 94, leave to appeal ref’d  S.C.C.A. No. 364; and Bell v. Levy, 2011 BCCA 417 (CanLII) at para. 75), or it appears that the decision is clearly wrong and may result in an injustice (see Taylor v. Vancouver General Hospital (1945), 1945 CanLII 286 (BC CA), 62 B.C.R. 42 at 50,  3 W.W.R. 510 (C.A.)).
In Player v. Janssen-Ortho Inc., 2014 BCSC 1122 (CanLII) the Court states:
 Rule 9–7 of the Supreme Court Civil Rules permits any party to an action to apply to the court for judgment, either on an issue or generally, by way of a summary trial. The Rule, like its predecessor, Rule 18A, is meant to expedite the early resolution of cases by allowing parties to put forward their evidence via affidavits and other written materials, rather than by viva voce testimony.
 Not all matters are suitable for determination by this process. As set out in Rule 9–7(15)(a), the court may not grant judgment in a summary trial where the judge is unable to find the facts necessary to determine the issues, or is of the opinion that it would be unjust to decide the issues summarily.
 The leading case on summary trial, Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., 1989 CanLII 229 (BC CA),  B.C.J. No. 1003.
We will review the leading authority on a later post.
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