Introduction
In our previous post, we discussed when a summary trial application is permitted under Rule 9-7 of the Supreme Court Civil Rules, as well as the distinct timing and service requirements that apply. Once a
litigant has determined that a summary trial is procedurally available and can be brought within the prescribed timelines, the next critical question arises: what must be filed in support of a summary trial application?
Because summary trials are typically decided without livetestimony, the materials filed take on heightened importance. The success of a summary trial application often turns not only on the legal issues in dispute,
but also on whether the evidentiary record allows the court to fairly and justly resolve those issues on a written record.
Affidavit Evidence as the Foundation
Rule 9-7(5) provides that the court may decide a summary trial on the basis of affidavit evidence, admissions, answers to interrogatories, expert reports, and other admissible material. In practice,
affidavits form the backbone of most summary trial applications.
Affidavits must set out the evidence that would otherwise be presented through witnesses at a conventional trial. This includes the relevant facts supporting a party’s claim or defence, as well as sufficient background
information to place the dispute in context. Affidavits must comply with Rule 22-2 and should generally be confined to facts within the personal knowledge of the deponent.
Care must be taken to avoid argument, opinion, or commentary on the law within affidavits. Courts have consistently emphasized that affidavits are not a vehicle for legal submissions. Instead, they should
present the evidence clearly and neutrally, leaving argument to written submissions.
Given that the court may be asked to resolve contested factual issues based solely on affidavit evidence, clarity and organization are essential. Well-structured affidavits that clearly identify key facts and
attach relevant exhibits are more likely to assist the court in determining whether summary disposition is appropriate.
Documentary Evidence and Exhibits
Documentary evidence frequently plays a central role in summary trial applications. Contracts, correspondence, financial records, medical reports, and other documents are commonly introduced as exhibits to affidavits.
However, attaching documents without explanation can undermine their usefulness. Affidavits should explain what the documents are, how they were created, and why they are relevant to the issues before the
court. Where large volumes of documents are involved, selectivity and proportionality are particularly important.
Practitioners must also be mindful of admissibility concerns, including hearsay. In some cases, it may be necessary to establish that documents fall within a recognized exception, such as the business records
exception. Failure to do so may result in key documents being given little or no weight.
Expert Evidence on Summary Trial
Rule 9-7 expressly permits the use of expert evidence. Expert reports relied upon in a summary trial must comply with Rule 11-6, including the requirement that experts acknowledge their duty to assist the
court and provide independent, objective opinions.
Expert evidence can strengthen a summary trial application where it addresses discrete issues that do not require extensive cross-examination. However, courts have cautioned that summary trials may be
inappropriate where the outcome depends on resolving significant conflicts between competing expert opinions.
While the presence of expert evidence does not automatically preclude a summary trial, litigants should carefully consider whether the expert disputes can be fairly resolved on a written record, or whether
credibility and reliability concerns make a conventional trial more appropriate.
Admissions, Interrogatories, and Discovery Evidence
The court may also consider admissions, answers to interrogatories, and evidence obtained through the discovery process. These materials can be particularly helpful in narrowing the issues or establishing
that certain facts are no longer in dispute.
Discovery evidence is often introduced through affidavit exhibits, such as excerpts from examination for discovery transcripts. Care should be taken to ensure that only relevant portions are included and that the
excerpts are properly contextualized. Overloading the record with unnecessary discovery material may detract from the efficiency that summary trials are intended to achieve.
Written Submissions and the Suitability of Summary Trial
In addition to evidentiary materials, parties must file written submissions setting out the legal basis for the relief sought. Effective submissions do more than apply the law to the facts; they also address whether the matter is suitable for summary determination.
Courts assessing summary trial applications must be satisfied that they can find the necessary facts and apply the law in a manner that is fair to both parties. Written submissions should therefore anticipate
and address potential concerns about credibility, incomplete evidence, or the need for viva voce testimony.
The Court’s Discretion
Even where a strong evidentiary record is filed, the court retains broad discretion under Rule 9-7 to decline to grant judgment. The court may dismiss the application, direct that the matter proceed to a conventional
trial, or order the trial of specific issues.
Accordingly, parties bringing summary trial applications must demonstrate not only that their position is legally sound, but also that the summary trial process itself is appropriate in the circumstances.
Conclusion
What is filed on a summary trial application is oftendecisive. Because the court relies primarily on written materials, parties must ensure that the evidentiary record is complete, admissible, and well-organized.
Affidavits, documentary exhibits, expert reports, and discovery evidence must work together to allow the court to fairly resolve the issues in dispute.
In our next post, we will examine when courts refuse to grant judgment on a summary trial, even where the evidence appears strong, and the key principles emerging from the case law.