Nova Scotia Annotated Civil Procedure Rules
Part 4 - Alternate Resolution or Determination
Rule 13 - Summary Judgment
Educational Notes
What we currently think of as summary judgment has become “summary judgment on evidence,” dealt with in R.13.04. The “no arguable issue” test is now articulated as the “no genuine issue for trial” test, but the standard is the same.
Rule 13 also creates a new type of summary judgment called “summary judgment on pleadings” in R.13.03, for cases where the pleading discloses no cause of action or defence, or is otherwise “clearly unsustainable.” This is analogous to the previous R.14.25 which dealt with striking pleadings.
Rule 13.01(2) specifies that pleadings which are frivolous or vexatious should be dealt with under Rule 88 – Abuse of Process. Rule 88.02(1)(e) permits the court to strike a pleading amounting to an abuse of process, along with a number of other possible remedies.
From time to time after dismissing an application for summary judgment under the previous R.13.02, the court would give directions to counsel for the conduct of the proceeding. Rule 13.07 now requires the court to do so, unless all parties waive the requirement. This change offers counsel a window of opportunity to streamline the case with the assistance of a judge who is already familiar with the key facts and issues. Rule 13.07 gives the court broad discretion to restrict discovery in view of disclosure already provided by affidavit or cross-examination, narrow the issues, deal with outstanding disclosure issues, permit the evidence called on the motion to stand at trial, or otherwise provide for a speedy trial.
Rule 13 is one of only a few new Rules intentionally drafted to incorporate jurisprudence from another jurisdiction. Counsel will find many parallels with Ontario’s R.20 and much of the Ontario jurisprudence on summary judgment will be applicable to motions under R.13. Two key differences in the Ontario Rules that have not been incorporated in Nova Scotia are: (a) Ontario R.20.06, which provides for significant costs sanctions after a failed motion for summary judgment; and (b) Ontario R.76, which adopts a less onerous test for summary judgment in cases proceeding under simplified procedures.
13.01 - Scope of Rule 13
13.01 Scope of Rule 13
(1) This Rule allows a party to move for summary judgment on the pleadings that are clearly unsustainable and to move for summary judgment on evidence establishing that there is no genuine issue for trial.
(2) A frivolous, vexatious, scandalous, or otherwise abusive pleading may be dealt with under Rule 88 - Abuse of Process.
- Frivolous, vexatious, scandalous or abusive proceedings
- Frivolous, vexatious or abusive proceedings, as abuse of process
- In Action
- In Application
Annotations
The defendant municipality reclaimed a property from the school board and later sold it to the plaintiff developer who discovered contamination. They sued the municipality and school board for negligence/breach of contract; in part, claiming the defendants breached their duties under the Education Act and Petroleum Management Regulations. The defendants moved for summary judgment, asking the claims be struck/dismissed for: disclosing no cause of action, lacking material facts and being clearly unsustainable. They argued there is no strict liability for breaching statutory duties. Held, motion dismissed. The claim will require amendments to show that statutory breach is being advanced as evidence of negligence and not as a cause of action. The existence of a good defence in relation to a particular pleading does not mean it should be struck as clearly unsustainable. If more information is needed to know the case to meet, that does not mean there is no cause of action; it can be addressed by a demand for particulars. Difficult/complex questions like proximity/duty of care are best left for trial unless the claim is clearly unsustainable.
Full text: 3021386 Nova Scotia Ltd. v. Barrington (District), 2010 NSSC 173
The parties entered into an agreement that the plaintiff could move into the defendant’s property in advance of a formal sale for a monthly payment. The defendant evicted the plaintiff when subsequent negotiations failed to result in an agreement for the purchase of the property and the plaintiff was inconsistent in making the monthly payments. The plaintiff commenced an action claiming that the defendant had unlawfully distrained substantial equipment and materials that were owned by another company (even though the invoices for the distrained goods were made out to the plaintiff) and were subject to a purchase money security interest (PMSI) in favour of a financial institution. The plaintiff’s application to have the distraint declared illegal and for the release of the distrained property on the basis of a summary judgment or a summary resolution of a question of law was dismissed. The court found, inter alia, that the ownership of the distrained equipment was an arguable issue that was critical to the outcome of the action and credibility would play a major role in resolving this issue and the issue of the PMSI, which required input from several third parties who were not involved in this application.
Full text: Cangra Natural Stones Inc. v. Snair's White Eagle Bakery Ltd., 2009 NSSC 252