Despite concerns regarding the credibility of the parties, Justice Dow grants Summary Judgment in “very exceptional case where the paper record was sufficient to reach a fair conclusion”
Released April 22, 2016 | Full Decision [CanLII]
The defendant brought a summary judgment motion. The plaintiff opposed the motion, arguing that a trial was required in order to evaluate the credibility of the parties. The plaintiff and defendant had given disparate views of how the motor vehicle-pedestrian collision had occurred.
Justice Dow heard the motion. After a review of all liability evidence, including the transcripts of both parties’ examinations for discovery, Justice Dow found that the parties had given contradictory liability evidence. He also held that this contradictory evidence required findings of credibility on the plaintiff, the defendant, and independent witnesses. Justice Dow further noted that making conclusions on credibility without hearing testimony was “problematic.”
Despite this, however, Justice Dow concluded that this was “the very exceptional case where the paper record [was] sufficient to reach a fair and proportionate conclusion.” Justice Dow cited a few summary judgment decisions where the motion judge dismissed the motion due to credibility issues that needed to be addressed at trial. Justice Dow distinguished the case from these other summary judgment motions by stating that both parties had thoroughly placed before him all of the evidence that likely would have been available at trial.
Counsel for the Plaintiff: Tajinder Gogna
Counsel for the Defendant: Ryan Garay
