Tuesday, 13 March 2012

No Summary Judgment for Where Law and Fact Intermix

Rule 9-6, dealing with summary judgments (not to be confused with summary trials), is the evolution of the old R. 18.  Part of this evolution is the addition of R. 9-6(5)(c), which gives the court discretion to pronounce summary judgment when the only issue between the parties is a question of law:
(5)  On hearing an application under subrule (2) or (4) [summary judgment application brought by plaintiff or defendant], the court, 
(c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and
In a chambers decision pronounced last year, and a recent decision denying leave to appeal, the courts have provided some guidance on the application of this provision.

In Haghdust v. BCLC, 2011 BCSC 1627, Mr. Justice Savage considered this provision for the first time and refused to pronounce judgment because "the legal answers are not dispositive of an issue" and would invite litigation by installments:
... even if I were of the view that three of those four arguments are without merit, if one argument is not “bound to fail”, I should refrain from providing what is in effect a declaratory opinion with respect to the others.  That would invite “litigation by instalments”, which is to be discouraged...
In 2012 BCCA 120, refusing leave to appeal, Donald J.A. declined to specifically endorse the "bound to fail" test for R. 9-6(5)(c), but did not confirm that the underlying principles applied by Savage J. were valid.  In particular, he held as follows:
  • judgment under Rule 9-6(5)(c) was not appropriate because BCLC "cannot isolate the questions of law upon which summary judgment is sought from the matrix of relevant facts" (para.5);
  • it is "an application of the fundamental principle known as judicial economy" that a question of law should not be decided "in a vacuum" when it would not dispose of the claims (para.24); and 
  • "Regardless of how the test for Rule 9-6(5)(c) may be framed, it is certain to encompass judicial economy and the overarching consideration of the interests of justice." (para. 25).
In light of this guidance, it would appear that R. 9-6(5)(c) is reserved for those unique situations where the only issue between the parties is a pure point of law, for example, construction of a statute, that is not influenced by the factual matrix of the parties' particular circumstances.