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RULE 17A
SUMMARY TRIAL AND EXPEDITED TRIAL

Analysis



Summary Trial

17A.01.   (1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list, apply to the Court with supporting affidavit material or other evidence for summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be.

             (2)  A plaintiff may apply, without notice, for leave to serve an application for judgment under this rule, together with the statement of claim, and leave may be given where special urgency is shown subject to such directions as are just.

             (3)  Rule 17A applies with the necessary modifications to counterclaims and third party claims.

             (4)  Unless otherwise ordered, an application for summary trial shall be served on all affected parties at least twenty clear days before a hearing.

165/94 s1; 240/94

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Evidence on Application

17A.02.   (1) On an application under this rule, a party may adduce evidence by any or all of

             (a )  affidavit;

             (b)  an answer, or part of an answer, to interrogatories that may have previously been administered;

             (c)  any part of the evidence taken upon an examination for discovery.

             (2)  In response to affidavit material or other evidence supporting any application for summary trial, a responding party may not rest on the mere allegations or denials in the party's pleadings, but shall set out, in affidavit material or otherwise, specific facts showing that there is a genuine issue for trial. Affidavits and other material to be relied on by the responding party shall be filed and served on the other party at least five days before the hearing.

             (3)  Deponents in affidavits may be cross-examined and re-examined, provided at least three days notice is given to the party submitting the affidavit to produce the deponent for cross-examination.

             (4)  An affidavit for use on an application under this rule may be made on information and belief as provided in rule 48.02.(1), but on the hearing of the application, an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.

             (5)  The Court may draw an adverse inference from the failure of a party to cross-examine on, or file affidavit evidence in reply to, an affidavit used on an application under this rule.

             (6)  On an application under this rule each party shall serve on every other party to the application a memorandum consisting of a concise statement of the facts and law relied on by the party and file it with the Court not later than forty-eight hours before the day set for the hearing.

165/94 s1; 36/14 s18

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Disposition of Application

17A.03.   (1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.

             (2)  Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless

             (a)  the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or

             (b)  it would be unjust to decide the issues on the application.

             (3)  Where the Court is satisfied that the only genuine issue is the amount to which a party is entitled, the Court may order a trial of that issue or grant judgment with a reference to determine the amount.

             (4)  Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant judgment accordingly.

             (5)  Where a party claims an accounting and the responding party fails to satisfy the Court that there is a preliminary issue to be tried, the Court may grant judgment on the claim with a reference to take accounts.

165/94 s1

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Granting of Judgment

17A.04.   (1) A plaintiff who obtains judgment under this rule may proceed against the same defendant for any other relief and against any other defendant for the same or any other relief.

             (2)  Where it appears that the enforcement of a summary judgment granted under this rule ought to be stayed pending the determination of any other issue in the proceeding or in a counterclaim or third party claim, the Court may so order on such terms as are just.

165/94 s1

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Effect of Dismissal of Application

17A.05.   (1) Where an application for summary trial is dismissed, the applying party may not make any further application under this rule without leave of the Court.

             (2)  Where on an application for summary trial under this rule, the applying party obtains no relief, the Court shall fix the opposite party's costs of the application on a solicitor and client basis and order the applying party to pay them forthwith unless the Court is satisfied that the bringing of the application, although unsuccessful, was nevertheless reasonable, in which case the costs may be assessed on a party and party or some other lesser basis, or not at all.

165/94 s1

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Bad Faith

17A.06.  Where it appears to the Court that a party to an application for summary trial has acted in bad faith or primarily for the purpose of delay, the Court may fix the costs of the application on a solicitor and client basis and order the party to pay them forthwith.

165/94 s1

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Where Trial is Necessary

17A.07.   (1) Where an application for summary trial is dismissed, either in whole or in part, the Court may order the proceeding or the issues in the proceeding not disposed of, to proceed to trial in the normal course or upon the request of any party may order an expedited trial under rule 17A.09.

             (2)  Where a proceeding is ordered to proceed to trial, in whole or in part, the court may give such directions or impose such terms as are just, including orders and directions

             (a)  specifying what material facts are in dispute and defining the issues to be tried;

             (b)  for payment into Court of all or part of the claim;

             (c)  for security for costs;

             (d)  that the nature and scope of discovery, if any, be limited to matters not covered by the affidavits filed on the application and any cross-examination on them, and that the affidavits and cross-examinations may be used at trial in the same manner as an examination for discovery;

             (e)  specifying what additional pre-trial procedures should be undertaken and the manner of their exercise.

             (3)  Where a party fails to comply with an order for payment into Court or for security for costs, the Court on application of the opposite party may dismiss the proceeding, strike out the defence or make such other order as is just.

165/94 s1

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Judge Not to Preside

17A.08.  A judge who has heard an application for summary trial under this rule shall not preside at the trial unless all parties of record consent.

165/94 s1

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Expedited Trial

17A.09.   (1) Notwithstanding that there may have been an application under rule 17.01, 17A.01, 40.03 or 40.04, the Court may, on application by any party where

             (a)  the claim is for a liquidated sum not exceeding $15,000 excluding post-judgment interest and costs; or

             (b)  in any other case where action under this rule can be taken without injustice to any other party,

order the expedited trial of a proceeding or an issue in a proceeding, and may order that

             (c)  certain facts described in the order are not in dispute;

             (d)  pleadings be amended or closed within a fixed time;

             (e)  interlocutory applications be brought within a fixed time;

              (f)  procedures for examination for discovery be completed within a fixed time;

             (g)  examination for discovery be dispensed with or limited in nature and scope;

             (h)  other pre-trial applications or procedures be dispensed with or limited in nature and scope;

              (i)  evidence be adduced by affidavit;

              (j)  a party deliver a written summary of the proposed evidence of a witness within a fixed time;

             (k)  the evidence in chief of a witness be given in whole or in part by the production of a written statement;

              (l)  experts who have been retained by the parties meet, on a without prejudice basis, to determine those matters on which they agree and to identify those matters on which they do not agree;

            (m)  a pre-trial conference be held at a time and date to be fixed, at which any of the orders in this rule may be made; and

             (n)  a pre-trial conference be dispensed with and the proceeding be set down for trial on a trial list or, with the approval of the Chief Justice, set for trial on a particular date.

             (2)  On an application under rule 17A.09( 1) the court may make such other order as is just for the purpose of expediting the trial of a proceeding.

             (3)  At the trial any facts ordered not to be in dispute shall be deemed to be established and the trial shall be conducted accordingly, unless the trial judge orders otherwise.

             (4)  A judge may, before or at trial, vary or set aside an order made under rule 17A.09( 1) or (2).

165/94 s1; 240/94; 111/10 s3