CASE COMMENT: MacAulay v. Ali 2013 NSSC 271


The Nova Scotia Supreme Court recently released this decision on an unsuccessful summary judgment motion. The motion was brought by a defendant in a personal injury claim involving a Metro Transit passenger who alleged injuries suffered during a collision with the defendant’s vehicle.

The decision raises questions as to the admissibility of evidence often traditionally attached to affidavits of administrative personnel (whether insurance adjusters or paralegals) who have no personal knowledge of the contents. Both the defendant and plaintiff had tendered such evidence. The Court declined to admit all but two pieces of evidence (a video produced by Metro Transit showing various camera views at the time of the accident, and the plaintiff’s signed statement). In so doing, the Court cited a recent Court of Appeal decision involving CPR 22.15:

[7] The deponents of both affidavits had no personal knowledge of the materials attached as exhibits. Their affidavits might be sufficient to prove that the documents were produced in the litigation; however, that is not sufficient to allow them to be admitted for the truth of their contents. Civil Procedure Rule 22.15(1) states that the rules of evidence shall apply to the hearing of a motion including any affidavits. Subsection (2) permits hearsay on certain motions, none of which are applicable in the present case.
[8] The principle that only admissible evidence should be considered on a motion for summary judgment was reiterated by the Nova Scotia Court of Appeal in the recent decision of Abbott and Haliburton Company v. WBLI Chartered Accountants, 2013 NSCA 66…

[17] As an aside, I would note that this case highlights the problems associated with the use of affidavits from administrative personnel on motions. For the most
part, this will not constitute proof of the attached exhibits which would allow them to be admitted for the truth of their contents. In preparing for any substantive motion, counsel need to carefully consider the evidentiary record on which they intend to rely, and ensure that it is properly admissible.

The case involved a situation where the defendant had obtained a statement from the plaintiff which it contended was contradicted by video evidence. Although Justice Wood appeared to take the defendant’s point as to the issues raised, he was not prepared to go so far as to grant summary judgment:

[24] I agree with counsel for the plaintiff that some witness testimony is required in order to draw any firm conclusions from the video evidence. This could include a technical video person, the plaintiff, an expert or other passengers. I take judicial notice of the fact that not all persons who are injured demonstrate immediate symptoms of pain, particularly with respect to soft tissue injuries. It is not unheard of for someone to develop pain and stiffness several hours or more following an accident. I am not prepared to draw an inference from the video that the plaintiff was not or could not have been hurt in the accident. In addition, I have the plaintiff’s statement where she says she was, in fact, hurt.
[25] I agree with counsel for the defendant that a comparison of the video and the statement raises serious credibility issues; however, those are the precise types of questions that cannot be resolved on a summary judgment motion. It will be up to the trial judge to assess the plaintiff’s credibility on the basis of all of the evidence and her cross-examination.

There is limited opportunity for parties to thwart litigation at an early stage in claims with major credibility issues. If a litigant with video from six cameras, and a contradictory statement, cannot obtain summary judgment, it is tempting to dismiss the whole exercise as a waste of time and resources. However, this may not be the last word on the issue and insurers still need to consider pursuing summary judgment in appropriate cases.