On August 30th, the Nova Scotia Court of Appeal released its 4-1 decision upholding the right of a young plaintiff to sue the owner of a ski resort where he sustained injuries that left him paralyzed, as well as the snowboard manufacturer which was offering free rides on their products (along with free samples of high-energy drinks) on the day the plaintiff fell.
The defendants had moved for summary judgment in 2011 and the decision was released 16 months later. The motions judge was of the view that the defendants had not proved their claim that the evidence failed to raise a genuine issue for trial. The majority of the Court of Appeal upheld the motions judge’s decision.
This case is perhaps most significant as a critique and exploration of current NS Civil Procedure Rule 13.04. Writing for the majority, Justice Saunders pointed out that the 2009 amendments to the Civil Procedure Rules may have caused some problems:
 The test for summary judgment established in Guarantee almost 15 years ago and applied consistently ever since is that any defendant (in this case Wentworth and Burton) who seeks summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”… The words I have underlined “of material fact” were not repeated in the Rule. As we have seen, CPR 13.04(1) reads:
(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise a genuine issue for trial must grant summary judgment. …
The critical words “of material fact” have been dropped. I think this is unfortunate and may have led to some confusion in both the application of the test and the steps or stages that are triggered during that application.
 While a careful reading of the Chambers judge’s reasons as a whole satisfies me that he correctly applied the law and properly concluded that Burton’s motion ought to be dismissed, his use of language in certain respects might suggest a straddling or conflating of the respective burdens inherent in such analysis as well as the distinct stages such an inquiry includes. While such expressions had no impact on the result in this case they have the potential of leading a decision-maker astray in the next case.
The court then went on to set out the proper test for summary judgment under Rule 13.04. Boiled down to its essentials, it is:
1. Did the moving party satisfy the court that there were no genuine issues of material fact requiring a trial? If not, the inquiry is at an end and the motion fails. This step involves only the important factual matters that anchor the cause of action or defence; it does not delve into the relative merits of the parties’ cases.
2. If the moving party did satisfy the court in step 1, can the responding party then satisfy the court that it has a real chance of success at trial? This step does consider the relative merits, and while it is not concerned with whether the respondent’s case has been proven to the civil trial standard, it is the kind of chance that if the judge were to ask himself or herself “is there a reasonable prospect for success on the indispute facts?”, the answer would be “yes”.
This decision clarifies the relationship between the “new” CPR 13.04 and the existing case law, and will be a touchstone for counsel in future summary judgment motions.