June 22, 2013

Records, Inferences, “Pivotal Facts”

Filed under: Uncategorized — ruleswatch @ 12:16 pm

In Ross v. Bank of Montreal, 2013 NSCA 70, the pre-hearing efforts of the parties and the chambers judge to deal practically with a fistful of procedural issues and no doubt a well-placed desire to get on with the practical business of hearing and determining motions for summary judgement has produced a Court of Appeal decision that serves as a stark and useful reminder of the importance of fundamentals.

Evidence on summary judgement or abuse of process dismissal motions: Bryson J.A., for the Court, has reminded us that a Court is not in a position to make findings of fact on summary judgement motions or on motions to dismiss for abuse of process, excepting from limited and explicit sources:

Observing that, on review of a series of facts recited in the decision under appeal, the Court observed early in the decision that “…it is important to point out that there is nothing to support some …stated facts.” [para 6].

From this, the Court of Appeal goes on to observe, “While the court may infer facts from a pleading to characterize the pleading for the purposes of a Rule 88 motion for abuse of process, none of the Rules [13.03, 13.04 or 88] authorize a judge to make findings of fact outside of supporting evidence or from counsel’s express and jointly agreed stipulations on behalf of their clients.”

Under none of these Rules may the judge make findings of fact drawn simply from one counsel’s suggestions, unstipulated by the opposing party, and without any supporting evidence.” [para7]. A motion for summary judgement “depends on the evidence presented.” [Rule 13.04(3)].

In summary, in the view of the Court of Appeal, the decision appealed from “…committed a papable and overriding error by inferring pivotal facts without any pleadings, evidence or factual agreements of the parties. These decisions resulted in an erroneous conclusion that the defence and counterclaim constituted an abuse of process.” [para 46]

Notice essential: In a complicated overall procedural backdrop to the motions and in the preliminaries particular to them in this case, the Court stood on the proposition that in the record before the court, there was, inter alia, “nothing to indicate that the Rosses had notice of, instructed counsel, participated in or knew the outcome of the various receiverships proceedings…” Hence, an order striking various defences in a proceeding which was to be, but had not yet been ordered consolidated with a companion action to the one in which the motions for summary judgment had been brought, was overturned.

Record essential: Notwithstanding the apparently shared sense of the factual and procedural framework that sometimes results from the collective efforts of counsel to hammer out a consensual framework to allow a motion to go, the decision underlines the ultimate eminent importance of the record of the appeal.

The usual angst for counsel of attempting to identify and select the contents of an accurate, effective, comprehensive but also, efficient, record in a chambers appeal with a complicated background continues.

Inference on Abuse of Process Motions: The Court’s decision usefully reminds us almost as a by product of the decision that a characterization that a court may reach of the integrity of a claim attacked on a motion for abuse of process under Rule 88 is an inference that may be drawn from the pleadings, presumably in whole or in part.


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