Summary Trial Rule 9-7 – Suitability Factors to Consider
The Summary Trial review continues on Case Law Corner.
Once the court has found that there are sufficient facts necessary to decide on the issues, it must then be determined whether it would be “unjust” to grant judgment (Rule 9-7(15)).
The court will consider a number of factors, which were outlined in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), a leading authority that has clarified the principles of summary trial. This decision is frequently referenced and relied on in summary trial applications. It is recommended this case law be reviewed and summarized.
The factors to be considered in preparation of a summary trial application are:
- the amount involved
- the complexity of the matter
- its urgency
- any prejudice likely to arise by reason of delay
- the cost of taking the case forward to a conventional trial in relation to the amount involved
- the course of the proceedings and any other matters which arise for consideration on this important question
- the cost of the litigation and the time of the summary trial,
- whether credibility is a critical factor in the determination of the dispute,
- whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and
- whether the application would result in litigating in slices.
These factors should be considered when you are preparing for a Summary Trial application. This is where careful analysis is required, professional skill (your lawyers) and careful organization of your materials. Consider the facts of your case, and consider these factors. Ask yourself “What is a Judge going to consider based on the facts of your case and how are these factors relevant to your case?” For example, if there is urgency, be sure to identify the urgency in your application materials. If prejudice will occur due to a delay, than the facts and basis of this prejudice should be outlined in your materials. Careful consideration of each and every factor must be made during your preparation of your application materials.
Legal research can be undertaken on these specific factors for further understanding of how the Courts assess these points. There are a number of cases noted below which will provide further insight on this subject:
The Amount Involved
As an example: the factor of the amount involved, the Court in Rai v Wilson, 1999 BCCA 167 (CanlLii) noted:
“The amount in issue should not preclude summary disposition if the case is otherwise appropriate for summary trial.”
In light of this decision, you could perhaps argue that a summary trial hearing should not be precluded from going forward under Rule 9-7 if the only factor that impacts the case is “the amount involved.” Always speak to your counsel when preparing these application materials.
In a family law matter, the court was unable to find the facts to determine the issues due to the financial complexities that existed between the parties, and a lack of evidence, ie: an appraisal report had not been adduced into evidence and therefore, the court could not determine the equity in the home. A sale of the family home could not be granted, and the matter was referred to trial. S. M. v. B. M., 2016 BCSC 2126 (CanLII).
In a case between real estate agents and a development company in which commission was alleged to be owed, the Court concluded that there was urgency in proceeding summarily as the developers only owned one condo from their development, and if sold, the Plaintiff might not have any proceeds to execute on. KCC 264 Holdings Inc. v. Circadian (Atkins 2010) GP Ltd., 2014 BCSC 1183 (CanLII).
In a complex construction litigation claim Greater Vancouver Water District v. Bilfinger Berger AG, 2015 BCSC 485 (CanLII), the court outlined the prejudice that would result if the summary trial did not proceed: (But after a review of all the factors, the Court concluded that this matter was in fact not suitable for summary trial disposition.) The factors of prejudice that were raised are noted below:
- a considerable amount of time has already passed since the disputed events occurred.
- locating and maintaining the meaningful participation of witnesses will be increasingly difficult as time passes
- The lawyers too are not going to get any younger; and
- it will be of no assistance to the clients if due to the passage of time members of their legal team move on and they are required to hire new counsel
- there is some duplication in legal preparation time each time there is a hearing, as well as duplication of judicial resources.
The Cost of Taking the Matter Forward to a Conventional Trial
In Kalmiakov v. Shylova, 2016 BCSC 2095 (CanLII), it was deemed that neither party had the resources to proceed to a conventional trial. The Court stated that the delay would result in the wife going further into debt and the evidence supports that the ongoing litigation is stressful on her. She has recently been hospitalized for a panic attack, and each of her sons has filed an affidavit describing their concern about their mother’s health and the financial strain she is under.
Credibility Issues that Impact Rule 9-7
Where there exists conflicts in the evidence, this results in a question of credibility. A common argument you will see raised in a summary trial applications relates to the credibility of the parties. Counsel for one party will argue that due to the credibility issues of the parties, the case in question should not proceed summarily, but rather, should proceed to a conventional trial. However, the case law suggests that the credibility issues must be assessed first to determine whether the credibility issues relate to an essential matter or a critical matter. The law suggests that where credibility is an issue on critical issues, and it prevents the Court from ascertaining the necessary facts to decide the case (Rule 9-7 (15), than a conventional trial would be appropriate to allow witnesses to be called and cross examined in person. The reason for this is that a Judge is better equipped to assess credibility issues by viewing the witnesses in person at a conventional trial. As we know, a summary trial application does not allow for witnesses to be called to testify and be cross examined (although there may be a few exceptions to this rule).
Ahlwat v. Green, 2014 BCSC 1865 (CanLII) has provided a framework to clarify the argument that can often be raised on whether credibility will prevent a matter from proceeding pursuant to Rule 9-7.
“It is true that there is a limit to the extent that the court can assess credibility based on affidavit evidence, as stated in the same paragraph of the case cited above. In particular circumstances, a judge may find it impossible to find the facts necessary to determine the case for this very reason. However, when there is a credibility conflict on an essential issue, the case may still proceed summarily if the conflict can be resolved another way, such as by weighing the evidence or giving it different value based on collateral evidence, the contents of the documents or the conduct of the parties.”
A common quote you will see in the case law in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202; 36 C.P.C. (2d) 199 (C.A.), the Court of Appeal held at ¶43 that, on a summary trial under Rule 18A, the trial judge can resolve credibility issues in the appropriate circumstances.
“However, in cases such as this where the evidence of the parties on critical issues differs significantly, the proper approach is to conclude that it is not possible to find the facts necessary to determine the case. The credibility of the deponents must be tested by their being examined and cross-examined before the court or at least be cross-examined on their affidavits, although given the parties’ differing positions, the latter might not be sufficient in this case.”
To assess if credibility will be an issue, review the Affidavit material to identify any contradictions that exist. Consideration will need to be placed on whether the conflicts relate to an essential issue or a critical issue. Keep in mind, the Court can refer to collateral evidence or any pre-trial documents to determine which evidence bears more weight. Arguments can be made to suggest that a Court can not fairly assess the credibility of the parties, without seeing them testify in person at a conventional trial.
If there are multiple claims, overlapping issues that are intertwined and there will be a duplication of resources and hearings – a court will consider putting a matter over to a conventional trial if the summary trial hearing would create unnecessary complexity.
Litigating in Slices – is a separate post. Go to menu and search litigating in slices.
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