New Summary Judgment Motion Rule Introduced in New Brunswick: More Than Just a Tool to Dismiss Meritless Claims

January 24, 2017

As of January 1, 2017, Rule 22 of the New Brunswick Rules of Court for ‘Summary Judgment’ was repealed and replaced. Rule 22 for Summary Judgment has now been transformed from a means to weed out unmeritorious claims to a significant alternative model of adjudication.

When faced with a lawsuit, a Summary Judgment Motion is an important method to employ to dismiss a meritless allegation or defence, without incurring the cost of proceeding to a Trial.  As has always been the case, if one party can show early in the litigation and before Trial that there does not exist any genuine issue or dispute with regard to the facts, the Court will rule on the merits of the case.

It is no secret that the costs for a Trial can be prohibitive for all parties involved.  The Canadian justice system is aware of this new reality and it is for this reason that across Canada we are seeing a shift in ways to increase access to justice in order to avoid the often unaffordable cost of a Trial. This revised Rule is one such example.

In 2014, the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 (‘Hryniak v Mauldin’) met the growing concern of the costs of litigation head on. The Supreme Court considered Ontario’s new Rule for Summary Judgment, specifically Rule 20.04. New Brunswick’s revised Rule 22.04 mirrors the Ontario Rule.  At the bedrock of the Decision, the Court stated that Summary Judgment Motions enhance access to justice, as they offer a more cost efficient and faster alternative to a full Trial. A Motion Judge now has the authority to make necessary findings of fact, apply the law to these facts and achieve just results in a proportionate, expeditious and less expensive means, thus eliminating the need for a full Trial.

The New Test

Prior to the recent amendments, on a Motion for Summary Judgment, the test was whether there was ‘a genuine issue for Trial’.  The threshold was high and if there did exist a genuine issue for Trial, the Court, by default, had no choice but to order a Trial.  Now, the test is whether there is a ‘genuine issue requiring a Trial.’  With the new amendments, a Motion’s Judge now has fact finding tools at his/her disposal to permit an immediate ruling on all of the issues, in appropriate cases.

New Power of the Court

What are the most significant changes and how will they affect potential outcome of a Summary Judgment Motion?

The scope of acceptable evidence has been expanded; the introduction of expert evidence is now facilitated; the Judge has been given discretion to actually weigh contradictory Affidavit evidence and decide what is most credible or probable; and if necessary, the Court may order a party to give oral evidence and conduct a ‘mini-Trial’.   A pre-Motion Brief is also now required to be filed, which was not previously mandated. Details of the expanded powers of the Court are outlined below.

Scope of Acceptable Evidence Expanded

New Brunswick’s Rule 22 for Summary Judgment allows a party to submit evidence through a sworn Affidavit. The ability to succeed on a Summary Judgment Motion often comes down to a party’s Affidavit evidence. The previous Rule 22 restricted Affidavit evidence to only evidence that the swearing party to the Affidavit knew personally, i.e. the information they knew firsthand. An individual could not swear an Affidavit, for example, if they had learned of important information through a second hand party, regardless of the reliability of the second hand party.

The revised Rule 22 has changed this firsthand ‘personal knowledge’ requirement for Affidavit evidence. An Affidavit may now be sworn by an individual who has ‘information and belief’ of which they do not necessarily have firsthand knowledge.   This facilitates putting certain evidence before the Court, which was previously inadmissible, but critical to a central issue. This expanded rule of evidence does not necessarily permit a party to avoid obtaining an Affidavit from one who does have firsthand knowledge.  The ‘best evidence’ rule is maintained and if firsthand knowledge is available, a Court will draw an adverse inference if an Affidavit from such a source is not submitted with respect to contested facts. Therefore, parties relying on an Affidavit based on ‘information and belief’ are well advised to explain in the Affidavit why an Affidavit from a person having firsthand knowledge of the information is not being offered to the Court.

Weighing of Evidence

Prior to the amendments, a Motion Judge was not permitted to prefer the evidence of one deponent over another, when faced with contradictory Affidavits.   The revisions to the Rule now provide the Motion Judge with the discretion to weigh the evidence, evaluate the credibility of the information and of the deponent, and draw a reasonable inference from the evidence.  Although such evidence need not be equivalent to that which would be presented at Trial, the evidence must nonetheless be such that a Judge be satisfied that it will fairly resolve the dispute.

Opinion Evidence

Unlike its predecessor, the new Rule specifically addresses ‘opinion evidence’ and, with permission from the Court, a party may now submit an Affidavit containing opinion evidence, if the deponent were allowed to offer such opinion when testifying at Trial.  This will certainly facilitate offering opinion evidence on a Summary Judgment Motion which, in the past, was often challenging, without the benefit of cross examination of the deponent giving such opinion, and the ability to test and challenge the facts relied upon and conclusions contained in the expert opinion.

The benefit of a ‘Mini Trial’

A Motion Judge now has the discretionary power to exercise the above-noted tools, by ordering the presentation of supplementary evidence through oral testimony by one or more parties.  Whereas in the past, the insufficiency of evidence would, by necessity, have led to a dismissal of the Motion, the amendments to Rule 22 permit an expanded consideration of additional evidence.  In turn, this may permit a determination of the issues, rather than a default dismissal of the Motion.


It remains to be seen how frequently and extensively Judges will rely on these expanded discretionary powers, as the threshold required to satisfy the Court has not been diminished. While these new provisions are welcomed and overdue, they do not displace a Court’s primary and overriding objective: to be satisfied that it is able to reach, on the hearing of a Motion, as just of a result on all issues as had the matter proceeded to a full Trial.  Regardless, this represents an advancement of the Rule by offering the parties further opportunity to present expanded and supplementary evidence. This added measure of flexibility is now entrenched in the new Rule.

Cox & Palmer is a member of Risk Management Counsel of Canada.

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