The Court of Appeal of BC has upheld the awarding of over $400,000.00 for breach of a settlement agreement(2014 BCCA 66) despite the argument that the dispute should not have been dealt with by way of summary trial due to conflicts within the evidence. A summary trial is one that is conducted, for the most part, by only affidavit evidence avoiding the cost of having all the witnesses testify orally in court.
It appears that the Court of Appeal is encouraging summary trials as Judge Harris says its’ use, “exemplifies the principles justifying the importance of summary determination as a tool to improve access to justice that was recently discussed by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7.” Hryniak introduces proportionality into the considerations under the Ontario legislation. In British Columbia we have had similar changes with proportionality now being in Rule 1-3 of our Supreme Court Civil Rules:
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.
In finding that the dispute was suitable for summary trial the Court reaffirmed the current state of the law:
 In my view, this case was clearly suitable for summary determination. Most of the essential facts were not in dispute. To the extent that there was a conflict in the evidence, the summary trial judge exercised her discretion in accordance with the principles laid out in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, 36 C.P.C. (2d) 199 (C.A.) at para. 56, to order cross-examination which was to be conducted before her. The judge, therefore, put herself in a position where she was able to decide all the necessary facts.
In personal injury cases there are often conflicts in the evidence that can make it difficult for the court to decide a case by affidavits alone. However, with the necessary orders for cross-examination of witnesses this process may well help level the playing field for personal injury claimants.
With respect to the settlement agreement, the court was not convinced that the trial judge had made an error by finding the settlement agreement to repay $414,441.61 was binding. The judge essentially accepted one witness over another to find the agreement binding and had been breached.
Lastly I note that Hryniak did not refer to Inspiration Management in the written reasons which leaves open the broader issues of how it may change the application of Inspiration Management to summary trial applications in BC. However, as the Supreme Court of Canada stated at paragraph 30 of Hryniak, “the proportionality principle is now reflected in many of the provinces’ rules and can act as a touchstone for access to civil justice.” This principle has been expressly codified in British Columbia, Ontario, and Quebec: Supreme Court Civil Rules, B.C. Reg. 168/2009, Rule 1–3(2); Ontario Rules, Rule 1.04(1.1); and Code of Civil Procedure, R.S.Q., c. C-25, art. 4.2. Aspects of Alberta’s and Nova Scotia’s rules of court have also been interpreted as reflecting proportionality: Medicine Shoppe Canada Inc. v. Devchand, 2012 ABQB 375, 541 A.R. 312, at para. 11; Saturley v. CIBC World Markets Inc., 2011 NSSC 4, 297 N.S.R. (2d) 371, at para. 12.
Posted by personal injury lawyer Mr. Renn A. Holness, B.A. LL.B.