Threshold issues: it is: Unable to find the Affidavits: Western Delta Lands application Suitability and If it facts necessary for decide admissible for the challenging suitability should only won’t add to determining the be brought where it is clear that an the issues, after EFFICIENCY of suitability issue, application for ST is unsuitable considering all of the proceeding but not for evidence before it; or ii) deciding can apply for Charest v Poch Procedure for of the opinion that it substantive issues judgment “on an determining if a matter is suitable would be unjust to on summary trial: issue or for being tried summarily: decide the issues on the Charest v Poch. generally” Are there sufficient application Witnesses may The matter is facts before the Court in refuse to provide resolved on the which to make the affidavits and thus basis of necessary findings of fact? essentially “refuse documentary Is it unjust to decide to testify evidence and can the case on a summary trial be said to be a application? “paper trial”. 9-3 Special Case A summary procedure Statement of facts 9-3(5) decision of the court is William Parties must agree on ** rare by which a question of agreed to by both parties in the form of an opinion, statement of facts law or fact, or partly of which may serve as the basis law and partly of fact is Available anytime on of an order for judgment or stated for the court in agreement of parties or for special relief, only if the the form of a special by order parties consent. case for the opinion of the court 9-4 Point of Harfield: “the 9-4 (1) Consent of parties No evidence Court may dismiss the Harfield Point of law must arise Law general purpose is or court order action or make any order it from pleadings, facts that support to provide a way to Any time < trial Facts in the pleadings considers will further the the point of law cannot be in determine a are assumed to be object of the rules. 9-4 (2) dispute question of law true. which goes to the root of the action” ** Don’t use this rule without deciding if you contest the the issues of fact facts. raised in the pleadings.
Threshold issues: Suitability and If it won’t add to EFFICIENCY of proceeding can apply for judgment “on an issue or generally” The matter is resolved on the basis of documentary evidence and can be said to be a “paper trial”. it is: Unable to find the facts necessary for decide the issues, after considering all of the evidence before it; or ii) of the opinion that it would be unjust to decide the issues on the application Affidavits: admissible for the determining the suitability issue, but not for deciding substantive issues on summary trial: Charest v Poch. Witnesses may refuse to provide affidavits and thus essentially “refuse to testify Western Delta Lands application challenging suitability should only be brought where it is clear that an application for ST is unsuitable Charest v Poch Procedure for determining if a matter is suitable for being tried summarily: Are there sufficient facts before the Court in which to make the necessary findings of fact? Is it unjust to decide the case on a summary trial application? 9-3 Special Case ** rare A summary procedure by which a question of law or fact, or partly of law and partly of fact is stated for the court in the form of a special case for the opinion of the court Statement of facts agreed to by both parties Available anytime on agreement of parties or by order 9-3(5) decision of the court is in the form of an opinion, which may serve as the basis of an order for judgment or for special relief, only if the parties consent. William Parties must agree on statement of facts 9-4 Point of Law Harfield: “the general purpose is to provide a way to determine a question of law which goes to the root of the action” without deciding the issues of fact raised in the pleadings. 9-4 (1) Consent of parties or court order Any time < trial No evidence Facts in the pleadings are assumed to be true. ** Don’t use this rule if you contest the facts. Court may dismiss the action or make any order it considers will further the object of the rules. 9-4 (2) Harfield Point of law must arise from pleadings, facts that support the point of law cannot be in dispute
Greenberg%20&%20Michaud_71_Fall_2018_JT_Simpson.docx