In June 1982, the New Brunswick Rules of Court operated a significant shift in procedural rules when they came into force. They were designed to move the court processes towards substance and away from technicalities. As Rules 1.03(2) and 2.02 state, they are to be construed liberally “to secure the just, least expensive and most expeditious determination of every proceeding on its merits” and treating procedural errors “as an irregularity” not rendering “the proceeding a nullity”. Within that new philosophy, Rule 22 was intended as a means to expedite resolution of issues that appeared relatively clear without the need for a full trial. Obviously, the rule is limited to matters initiated by pleadings (i.e. statement of claim, counterclaim, cross-claim and third-party claim), as opposed to Notices of Application which, by definition, are summary in nature.
Similar to any other motion, the evidence presented in support of a summary judgment is by way of affidavits. Since its inception, Rule 22 contained its own evidentiary requirements, in addition to Rule 39. Originally, the rule was fairly limited. Although it allowed evidence based “on information and belief”, it also required evidence by someone having direct knowledge. This aspect of the rule was significantly altered in 2016. While it still allows evidence based on information and belief, it no longer requires direct evidence from someone who has such knowledge. However, “the court may draw an adverse inference from the failure … to provide the evidence of a person having personal knowledge of contested facts”: Rule 22.02(1); Fontaine v. Royal Bank of Canada, 2018 NBCA 75. Furthermore, there is a specific obligation on a respondent not to “rest solely on the allegations or denials in the party’s pleadings”, but to “set out, in affidavit or other evidence, specific facts showing there is a genuine issue requiring a trial”: Rule 22.02(2); Durant v. Aviation A. Auto Inc., 2019 NBQB 214 para 6.
The type of evidence that can be presented was considerably expanded in 2016. It is since possible, with leave of the court, to rely on affidavits that “contain opinion evidence if the deponent would be allowed to give that evidence while testifying in court”: Rule 22.02(3). In other words, expert evidence is now admissible on motions for summary judgment, which by itself operates a fundamental shift in the process. Although the rule in its previous version allowed cross examination on the affidavits (Rule 22.03), it now speaks of ‘mini-trials’ (Rule 22.04(3)). Even without oral evidence, the motion judge is empowered to (1) weigh the evidence, (2) assess the credibility of a deponent, and (3) draw all reasonable inferences from the evidence: Rule 22.04(2).
In essence, the purpose of Rule 22 is to assess whether an action presents a genuine issue requiring a trial. As stated in O’Toole v. Peterson, 2018 NBCA 8 para 68:
 The “no merit” test is nowhere to be found in our new Rule 22. The test for summary judgment is simply whether there is a genuine issue requiring a trial […]. As is well known, adjudication in civil litigation involves the application of the balance-of-probabilities standard. Since the moving party is the one making the allegation that there is no genuine issue requiring a trial, he or she bears the burden of persuading the court it has been established on a balance of probabilities. That is the extent of the moving party’s evidential and persuasive burden. Both sides must “put their best foot forward” […], the responding party having to “lead trump or risk losing” […].
See also Russell v. Northumberland Co-Operative Ltd, 2019 NBCA 70 paras 20-28 (leave to appeal to the Supreme Court of Canada denied on March 12, 2020 (file 38937)). If used properly, it will screen out the matters that are frivolous, vexatious and/or can be resolved in a summary fashion.
That being said, some requirements remain for the presentation of a summary judgment motion. Namely, the process is available once the pleadings are closed, not before: Rules 22.01(1) & (3); Estephan v. Dykeman, 2020 NBQB 65. A default judgment is the proper process where a defendant fails to respond. However, like all other rules, it may be the subject of abuse; it may serve to multiply unnecessary proceedings to force an opposing party into prolonged and costly litigation.
Evidence and Mini-Trials
As stated above, the goal of the rule is to determine if a matter presents a genuine issue requiring a trial. In Hryniak v. Mauldin, 2014 SCC 7 paras 49-50, the essence of the rule was explained thusly by the unanimous Supreme Court of Canada:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
Accordingly, the motion judge’s power with respect to the evidence has been expanded considerably. The facts that opinion evidence can be presented, that the presiding judge can assess the credibility of affiants and draw reasonable inferences from the evidence all lead to the conclusion that the process is geared towards resolving contentious issues in a summary fashion: Volpé v. New Brunswick, 2017 NBQB 109 paras 6; Abrams v. RTO Asset Management, 2020 NBCA 57. The rule therefore goes beyond a strict determination of whether there is a genuine issue requiring a trial as it itself allows mini trials to permit “the necessary facts and resolve the dispute”.
It is not clear when a mini trial will be necessary or ordered under the new rule. A formal motion is not necessary to ask for the examination of a witness: Munn v. Rust, 2006 NBCA 87 para 12; Volpé, supra paras 30-32. However, leave to examine is not automatic. While the presiding judge faulted a respondent for not seeking to examine witnesses in one case (Trevors v. Doucet, (B/C/76/2017, 13 December 2018, Robichaud J. unreported) para 34), others were denied leave to examine witnesses where no evidence explained how it would assist to determine the issue before the court (Crawford v. New Brunswick, 2018 NBQB 139 paras 41, 43 & 45; LeBlanc v. Allstate Insurance, (M/C/741/16, 5 November 2020, Chief Justice DeWare unreported)). As for mini trials, they will occur following an initial assessment, if there appears to be a genuine issue requiring a trial but the presiding judge thinks the resolution of the dispute possible without a full trial: Russell, supra paras 21-23; Rogers v. Powers, 2017 NBQB 250 para 10. Rule 22 has thus the potential to become a substitute to Rules 47.03(1) & (2): Trevors, supra; Maillet v. Violette, 2019 NBQB 74; Coates v. Downing, 2019 NBQB 145; Babineau v. Crossman Estate, 2020 NBQB 63; Estephan, supra; Hogue v. Goodine, 2020 NBQB 164.
There can be an examination without holding a mini trial: Russell, supra para 22. Examination of a witness was allowed in the case of New Brunswick v. Foulem Construction Ltée, 2017 NBQB 28 para 28. The presiding justice also allowed excerpts of a discovery transcript where the witness appeared to contradict the testimony sworn to in his affidavit. A similar route was followed in Vallis v. Gratwick Estate, 2018 NBQB 60 para 5, again allowing parts of the discovery transcript and oral examination of an affiant whose credibility was questioned (paras 8, 9 & 23). On the other hand, no requests for examination were made in Volpé, supra para 30, Gillis v. Law Society of New Brunswick, 2017 NBQB 212 para 25, Coates, supra paras 7 & 41; Durant, supra para 5, and Hashey v. CFM Corp., 2020 NBQB 159 para 16, while Lomax Investments Inc. v. Keough, 2017 NBQB 20 para 9, proceeded under the old rule.
In Rancourt-Cairns v. Saint Croix Printing and Publishing Co. Ltd, 2018 NBQB 19 paras 67 & 75, a case of wrongful dismissal, the presiding justice relied on rule 24.04(3) to order further evidence under the pretext that “the need for a trial can be avoided” (see also 2018 NBQB 130). A mini trial was held on a very specific issue which ended in a summary judgment holding that a tort of seclusion had not been established. A mini trial was also ordered in the case of Jardine v. Phoenix Petroleum, 2020 NBQB 172 paras 37-40, again alleging wrongful dismissal, as the presiding justice felt that “it should be possible to make the necessary findings of fact to decide that issue” (i.e. whether there was just cause). A mini trial was ordered in Hogue, supra para 19, to decide whether there was a collision between two motor vehicles, as “there may be a genuine issue requiring a trial”. In the end, the motion for summary judgment was dismissed as there was a genuine issue requiring a trial. Thus, while some judges seem to invite parties to examine witnesses in a number of cases, in others the parties have to fight tooth and nail to be granted leave.
Powers of the Court
Except for extending the power to deal with evidence and ordering mini trials, the powers of the court under Rule 22 remain essentially the same. However, a summary judgment is now mandatory if there is no genuine issue requiring a trial. If the presiding judge is satisfied that the only genuine issues pertain to the amount of a claim, accounting or a pure question of law, s/he can address them accordingly: Rules 22.04(4), (5) & (6). If s/he determines that a trial is necessary, s/he can formulate orders to identify the issue, set the matter down for trial and impose just terms and conditions regarding namely security for cost and discovery: Rule 22.05. S/he keeps the power to deal with costs according to circumstances: Rule 22.06.
This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.