Burton Canada Company v. Coady, 2013 NSCA 95

NOVA SCOTIA COURT OF APPEAL Citation: Burton Canada Company v. Coady , 2013 NSCA 95 Date: 20130828 Docket: CA 407433 Registry: Halifax Between: Burton Canada Company Appellant v. Michael Sampson Coady and Wentworth Valley Developments Limited Respondents Revised Decision: T he paragraph numbering has been corrected on October 17, 2013. This decision replaces the previously released decision. Judges: Saunders, Oland, Hamilton, Fichaud and Beveridge, JJ.A.

Appeal Heard: April 11, 2013, in Halifax, Nova Scotia Held: Leave to appeal granted but the appeal is dismissed per reasons for judgment of Saunders, J.A.; Oland, Hamilton and Fichaud, JJ.A. concurring; Beveridge, J.A. dissenting. Counsel: Scott R. Campbell and G. Grant Machum, for the appellant Robert K. Dickson, Q.C., Sean F. Layden, Q.C. and Ansley Simpson, for the respondent Michael Sampson Coady Jocelyn M. Campbell, Q.C., for the respondent Wentworth Valley Developments Limited Reasons for Judgment: [ 1 ] A young man was paralyzed when he fell and broke his neck while snowboarding in February, 2008.

He sued the owners of the mountain resort as well as the manufacturer of the snowboard alleging that they were negligent in failing to maintain the site and by enticing him to borrow a professional snowboard without doing anything to verify his age, experience or ability on the hill. [ 2 ] Both defendants argued that the plaintiff could not mount a proper case for trial and each brought a motion in Chambers for

summary judgment to have his suit dismissed. Nova Scotia Supreme Court Justice Gregory M. Warner heard the motions in Chambers. After a hearing that lasted six days spread over three months, he dismissed the defendants’ request for

summary judgment. The snowboard manufacturer appeals the judge’s decision to this Court. The ski resort owners have chosen not to appeal.

[ 3 ] For the reasons that follow I would dismiss the appeal. I will start by offering a brief

summary of the background to this proceeding to provide context for the analysis that follows. A much more detailed recitation of the facts may be found in Justice Warner’s decision now reported as 2012 NSSC 257 . Background [ 4 ] Michael Coady was born on June 5, 1991. On Saturday, February 16, 2008, he was 16 years of age. On that day he and two high school friends drove to the Wentworth Valley Ski Resort, owned by Wentworth Valley Developments Limited (“Wentworth”) to snowboard. Burton Canada Company (“Burton”) manufactures, distributes and sells snowboards.

On the day of the mishap Burton had set up a promotional booth at Wentworth which offered snowboarders trial runs on its snowboards and free high-caffeine energy drinks. [ 5 ] Michael Coady and his friends took Burton up on its offer. He signed the waiver document presented by Burton officials, handed over his driver’s license as ID, and acquired a snowboard. After a couple of runs down the regular ski hills on his own snowboard, Mr. Coady took the Burton board and followed the same route for a third run down the hill. Then he decided to enter the “Terrain Park”, a

section of the resort which was constructed and groomed as a place where snowboarders could try out more challenging jumps, tricks and manoeuvres. On his first approach to the first feature, a barrel jib, Mr. Coady fell due to what he described as slick and icy snow conditions on a snowboard that was much faster and lighter than his own. He suffered a serious fracture of the C-5 vertebrae, with damage to the spinal cord, resulting in partial paralysis. He is now confined to a wheelchair. [ 6 ] On October 3, 2008, Mr. Coady sued Burton and Wentworth for negligence. The judge’s decision on the

summary judgment motions provides a nice

summary of Mr. Coady’s allegations against the defendants: [6] ... Against Burton, he claimed that it failed to instruct and warn about the potential danger respecting use of its superior snowboard, failed to verify his age before giving him the board to test, and provided him with easy access to free high energy drinks in conjunction with the snowboard.

Against Wentworth, he claimed that it failed to supervise or have a system in place to supervise users of the Burton snowboards, especially minors and amateurs like himself, failed to warn of the dangerous condition of the barrel jib feature by proper warning signs, and failed to maintain safe snow conditions. [ 7 ] Over the ensuing 2½ years there was a profusion of interlocutory filings and events which included amendments to the statement of claim; demands for particulars; delivery of unsworn affidavits; limited disclosure; change of counsel; offers and then withdrawals of consent to amend; filing and amendment of defences; ultimately leading to the hearing before Justice Warner. [ 8 ] Justice Warner’s decision provides a very detailed and helpful chronology of the multiple steps in pleading, production and discovery which led up to the protracted 6-day hearing that began in January and spread over into February and March, 2011.

Hearing days were taken up with the cross-examination of two Wentworth officials who had filed affidavits as well as several other days spent considering counsels’ oral submissions. Warner, J. reserved judgment. Sixteen months later, on July 9, 2012, he filed a lengthy 37-page decision dismissing both motions for

summary judgment and awarding Mr. Coady his costs of $24,000 plus reasonable disbursements, payable forthwith. [ 9 ] In resisting Wentworth’s and Burton’s motions for

summary judgment, Mr. Coady said the motions were premature and that Wentworth and Burton had failed to satisfy their burden of persuading the court there were no material facts in dispute which would require a trial to resolve. Alternatively, on the undisputed facts, Mr. Coady said his claim had a real chance of success. [ 10 ] After a very detailed analysis Warner, J. concluded that both Burton and Wentworth had failed to satisfy him that there were no material facts in dispute and that as a result this was not a proper case to grant the defendants their

summary judgment. He went on to consider the alternative argument raised by Mr. Coady that the defendants’ motions for

summary judgment were premature and ought to be dismissed on that basis as well. [ 11 ] As noted earlier in these reasons, only Burton has chosen to appeal Justice Warner’s decision. Wentworth has elected not to appeal, and is content that the matter proceed to trial. While it won’t be necessary for me to refer in detail to Warner, J.’s consideration of the case as it relates to Wentworth, I think a brief review would be helpful since the numerous allegations against both defendants overlap to a certain extent and because I think the exercise will inform the analysis concerning Burton that follows. [ 12 ] In denying Wentworth its motion for

summary judgment Justice Warner was satisfied there were material facts that were very much in dispute which related to at least three of the plaintiff’s allegations. These are set out in detail at ¶202-230 of his decision. In the context of this appeal it is enough for me to say that as far as Justice Warner was concerned, these were important factual disputes, all of which related to the duty and standard of care owed by Wentworth to Mr. Coady and which deserved to be resolved by a decision-maker after a full trial on the merits. Those issues included: − Mr.

Coady’s level of skill and experience snowboarding in terrain parks containing features made from steel pipes, rails and “items other than snow” such as those that were offered at this resort, on the day of this tragic mishap; − the condition of the take-off to the barrel jib feature at the time Mr.

Coady approached it and fell, which would include both the dangerousness of the snow conditions at the time and whether the feature should have been closed on account of it being too icy to brake, and also whether the designation marking the barrel jib as “M” (for medium) was appropriate to describe its degree of difficulty and dimensions; − whether the barrel jib feature was curved and, if so, whether snowboarders were properly warned about its characteristics, shape and condition; and − the nature of the relationship, contractual or otherwise, between Wentworth and Burton and, in particular, how Burton conducted its activities while occupying Wentworth’s premises and what either or both parties did to fulfill their duty to visitors using their products and facilities.

[13] These then were the principal factual issues the motions judge found to be unresolved and would require a full trial to sort out. Put another way, Wentworth had failed to meet its burden of demonstrating that there were no material facts in dispute. For that reasonalone they were not entitled to

summary judgment. On this record I am not surprised that Wentworth has chosen not to appeal. In myrespectful view Justice Warner’s decision reflects a proper application of the law to the evidence before him and has not produced anobviously unjust result. [14] I turn now to Burton’s request for leave to appeal and appeal from Warner, J.’s dismissal of its motion for

summary judgment,as well as the judge’s award of costs. As far as costs are concerned, Burton complains that the judge erred by dividing the $24,000 costsplus disbursements award to Mr. Coady, evenly as between Burton and Wentworth. Justice Warner’s order reads: ... Now upon motion, it is ordered that: 1. The motions are dismissed. 2.

Costs in the amount of $24,000.00 plus reasonable disbursements as verified by Affidavit are payable forthwith by the Defendantto the Plaintiff, one half from each of the Defendants. [15] Burton says this is unfair “because Wentworth was far more active than Burton during the hearing of the motions”. It says itsexposure should have been limited to $4,000 under the circumstances. [16] Wentworth has joined the appeal as a respondent saying Burton’s appeal of costs ought to be dismissed on the basis that JusticeWarner’s ruling fell clearly within his broad discretion in such matters.

Wentworth seeks its costs on appeal. Issues [17] The parties do not agree on how to articulate or characterize the issues. In my view there are only four and I would frame theissues this way: 1. Should leave to appeal be granted? 2. Did the Chambers judge err by refusing to grant Burton

summary judgment? 3. Did the Chambers judge err by ruling, in the alternative, that the motion for

summary judgment was premature? 4. Did the Chambers judge err in his award of costs? Standard of Review [18] The first issue is not subject to a standard of review analysis. The question of whether leave to appeal ought to be granted is oneof first instance. The well- known test on a leave application is whether the appellant has raised an arguable issue, that is, an issue thatcould result in the appeal being allowed. See for example, Coughlan et al. v. Westminer Canada Ltd. et al. (1993), (NS CA), 125 N.S.R. (2d) 171 (C.A.); Michelin North America (Canada) Inc. v.

Richard Ross, 2002 NSCA 102; Hogeterp v.Huntley, 2007 NSCA 75; Hartling v. Nova Scotia (Attorney General), 2009 NSCA 130; Sydney Steel Corp. v. MacQueen, 2013NSCA 5; and Abbott and Haliburton Company v. WBLI Chartered Accountants, 2013 NSCA 66. [19] The standard of review applicable to

summary judgment motions in Nova Scotia is settled law. The once favoured thresholdinquiry as to whether the impugned order under appeal did or did not have a terminating affect, is now extinct. There is only onestandard of review. We will not intervene unless wrong principles of law were applied or, insofar as the judge was exercising adiscretion, a patent injustice would result. See for example, AMCI Export Corporation v. Nova Scotia Power Inc., 2010 NSCA 41;Innocente v.

Canada (Attorney General), 2012 NSCA 36 at ¶21-29; WBLI Chartered Accountants, supra; and Nova Scotia v.Roué, 2013 NSCA ​94. [20] Finally, with respect to Justice Warner’s award of costs, we will not interfere unless we are convinced that he erred in principleor that his decision is so clearly wrong as to amount to a manifest injustice. See Frothingham v. Perez, 2011 NSCA 59; and Young v.Hayward, 2013 NSCA 65. Analysis [21] Before answering the four questions posed in ¶17, supra, I wish to address some serious shortcomings in how this matter washandled which I find especially troubling.

This will require a review of the rationale behind

summary judgment and the properanalytical framework to be applied whenever such motions are heard. Preliminary Matter – The Purpose of

Summary Judgment [22] In my respectful opinion this process has become needlessly complicated and cumbersome.

Summary judgment should be justthat.

Summary. “Summary” is intended to mean quick and effective and less costly and time consuming than a trial. The purpose ofsummary judgment is to put an end to claims or defences that have no real prospect of success. Such cases are seen by an experiencedjudge as being doomed to fail. These matters are weeded out to free the system for other cases that deserve to be heard on their merits. That is the objective. Lawyers and judges should apply the Rules to ensure that such an outcome is achieved. [23] By any measure the sequence of events and unnecessary time and resources expended in this case is hardly the standard bywhich motions for

summary judgment ought to be gauged. This ill-fated mishap which caused Mr. Coady to suffer catastrophic injuryoccurred more than five years ago, yet to this point his litigation has precious little to show for it. During questioning at the hearing

counsel acknowledged that this was not the way

summary judgment is supposed to work. In fact, this case could serve to illustrate howbadly things can go whenever litigants lose sight of the object, goals and directions prescribed by our Civil Procedure Rules. [24] In this case, respectfully, it would seem that everyone – counsel and the judge – lost their way. There was nothing “summary”about it. Initially the lawyers predicted that half a day would suffice. As it turned out, their assessment was grossly under estimated. The hearings lasted 6 days. A massive record was assembled and filed even though production was limited, and not very productive.

Some discoveries were held. Certain affidavits were filed. Lengthy cross-examinations were conducted. The judge’s decision wasreserved for 16 months and when released totalled 37 densely packed, single-spaced pages comprising 238 paragraphs. The outcome ledto a complicated appeal, where we sat a panel of five members of this Court. Six lawyers appeared to argue their respective positions,fighting over a record comprising 11 volumes and forming a pile a foot high.

Whereas the publication of the Rules in 1972 heralded anew dawn with rules permitting exceptionally broad discovery designed to prevent “Trial by ambush”, we now – in this case – withreliance upon the 2009 revised CPRs see signs or hear complaints of “Chambers by ambush”. [25] These are not the qualities or characteristics one would wish to have associated with a motion for

summary judgment. Hopefully the reasons that follow will serve to avert the procedural and substantive flaws that arose in this case, so that they are not soonrepeated. [26] The legal principles applicable to a motion for

summary judgment are not complicated. The seminal case in Canada isGuarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423 which has been applied in along series of cases in Nova Scotia ever since. See for example, United Gulf Developments Limited. v. Iskandar, 2004 NSCA 35;Eikelenboom v. Holstein Association of Canada, 2004 NSCA 103; Orlandello v. Attorney General (Nova Scotia), 2005 NSCA 98;Nova Scotia Home for Coloured Children v. Milbury, 2007 NSCA 52; Hogeterp, supra; Young v.

Meery, 2009 NSCA 47; AMCIExport Corp., supra; Bank of Nova Scotia, supra; Frothingham, supra; Globex Foreign Exchange Corporation. v. Launt, 2011NSCA 67; and 2420188 Nova Scotia Ltd. v. Hiltz, 2011 NSCA 74. [27] In Guarantee the Supreme Court enunciated the test for

summary judgment. But because the Court’s clear statement of the testis not always reiterated with precision, the Court’s words bear repeating. The Court said: 27 The appropriate test to be applied on a motion for

summary judgment is satisfied when the applicant has shown that there is nogenuine issue of material fact requiring trial, and therefore

summary judgment is a proper question for consideration by the court. SeeHercules Managements Ltd. v. Ernst & Young, (SCC), [1997] 2 S.C.R. 165, at para. 15; Dawson v. Rexcraft Storageand Warehouse Inc. (1998), (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at pp. 267-68; Irving Ungerman Ltd. v.Galanis (1991), (ON CA), 4 O.R. (3d) 545 (C.A.), at pp. 550-51. Once the moving party has made this showing, therespondent must then “establish his claim as being one with a real chance of success” (Hercules, supra, at para. 15). [28] That statement was affirmed by the Supreme Court of Canada in Canada (Attorney General) v. Lameman, 2008 SCC 14where the Court per curiam reiterated the test for

summary judgment: [11] For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears theevidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. GordonCapital Corp., (SCC), [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mereallegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), (ON CA), 21 O.R. (3d) 547 (C.A.);Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), (AB KB), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant’s evidence, or risk

summary dismissal:Murphy Oil Co. v. Predator Corp. (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff’d (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69.Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Transamerica LifeInsurance Co. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434;Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32.

The chambers judge may make inferences of fact based on theundisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para.30. [29] The Rules have not changed these well-established legal principles.

Rather, they attempt to codify the legal principles thatemerge from the case law into a workable, effective matrix of procedural directives and deadlines. [30] It appears to me that some of the difficulty experienced by counsel and judges in this area of the law may arise because the Ruledoes not accurately track the test established by the Supreme Court in Guarantee. Here, Burton and Wentworth brought their motionsfor “summary judgment on evidence” pursuant to CPR 13.04 which provides: 13.04

(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise agenuine issue for trial must grant

summary judgment.

(2) The judge may grant judgment for the plaintiff, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(3) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of agenuine issue for trial depends on the evidence presented.

(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by thecontesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(5) A judge hearing a motion for

summary judgment on evidence may determine a question of law, if the only genuine issue for trial is aquestion of law.

(6) The motion may be made after pleadings close.

[ 31 ] 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”. (Underlining mine). 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. (Underlining mine) 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. [ 32 ] 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. [ 33 ] I will refer to certain parts of the judge’s decision to illustrate my point. At ¶135 Justice Warner said: [135] The purpose of a

summary judgment motion is to determine whether there are sufficient undisputed facts which, when the law is applied to them, give rise to a genuine issue for trial. (Underlining mine) I would respectfully disagree with his reference to “sufficient undisputed facts” on two fronts. First, the judge’s statement suggests a blurring of the two distinct stages of inquiry on a

summary judgment motion. In the first stage of the analysis the judge’s sole focus is on the disputed facts. The “undisputed facts” are irrelevant in the first stage of the analysis. Second, a judge is not to undertake any kind of quantitative or qualitative analysis of the amount of facts when deciding whether to grant

summary judgment. The court does not enter into an inquiry as to the “sufficiency” of the facts, whether they are disputed or otherwise. With respect, the test is only whether there are any material facts in dispute. If there are then a judge must conclude that

summary judgment is not available and that a trial is required to resolve the dispute. [ 34 ] There were other comments by the judge which are problematic. I will list them here: • “Burton submits that, based on Coady’s evidence, there is no material facts in dispute (sic) and the undisputed material facts raise no genuine issue for trial.” (at ¶45) • “Applying the Guarantee test, I conclude that the plaintiff has demonstrated sufficient material facts exist, from his discovery evidence and the waiver agreement, to raise a genuine issue about the duty and standard of care owed by Burton to him ....” (at ¶120) • “I deny

summary judgment on the basis that there is sufficient evidence before the Court to establish that Burton owed a duty of care to Coady, and standard of care that was owed. The liability of Burton to Coady remains a genuine issue for trial.” (at ¶148) • “There is disputed facts (sic) material to the alleged negligence ... Based on the facts on this motion, the plaintiff has satisfied me that genuine issues remain for trial.” (at ¶230) [ 35 ] The way the judge has expressed himself might suggest in the mind of the reader that there was some burden upon the plaintiff, Mr.

Coady, to show that there were genuine issues of material fact in dispute. Further, it might appear that the judge had crossed over, unnecessarily, into an inquiry on the merits as to whether the plaintiff could counter or refute the defendants’ evidence, and if not, risk

summary dismissal. [ 36 ] While, as I have said, these transgressions had no effect on the result in this case, some clarification is called for. I will do that by describing the analytical framework to be applied on

summary judgment motions. The Proper Analytical Framework [ 37 ] I will deal first with the burden, and then with the sequence of steps that occur when applying the test. [ 38 ] This was Burton’s motion for

summary judgment. Burton had the burden of satisfying Justice Warner that there were no genuine issues of material fact requiring a trial. That is stage 1 in the analysis. During this stage there was no burden upon Mr. Coady to do anything. Burton had the onus of satisfying the Chambers judge that

summary judgment was a proper question for consideration. In order to do that Burton bore the evidentiary burden of showing that there was no genuine issue of material fact which would necessitate a trial. It failed to do so. [ 39 ] Once Justice Warner concluded that Burton had failed to meet its burden, his finding ought to have ended the analysis. He did not have to enter into an inquiry, tangentially or otherwise, into the merits of Mr. Coady’s claim or his chances of success.

That is stage 2 in the analysis and only arises if the moving party has met the first stage which is to satisfy the court that there are no genuine issues of material fact requiring a trial. [ 40 ] It would only be if Burton had met its initial burden, that the responding party (here Mr. Coady) would be required to show he had a real chance of success with his claim ( AMCI, supra ). This would then engage the second stage of the inquiry. [ 41 ] It is important to remember the difference and the necessary separation between the first and second stage in the analysis.

Justice Fichaud (for the majority) put it well in 2420188 Nova Scotia Ltd. , supra at ¶21-28: [21] In Nova Scotia v. Brill , this Court said: [173] ... The applicant must show there is no genuine (or arguable) issue of material fact requiring trial. If the applicant does not show

this, the application is dismissed. If the applicant shows this, then, to defeat the application, the responding party must show, on theundisputed facts, that his claim or defence has a real chance of success: [citations omitted] [emphasis added] [22] Similarly, in AMCI Export Corporation. v. Nova Scotia Power Incorporation, 2010 NSCA 41, Justice Saunders for this Courtsaid: 14. ... As the moving party, NSPI had the burden of establishing that there was no genuine or arguable issue in dispute with respect toparagraph 8 which would necessitate a trial, and that therefore entitlement to

summary judgment could be properly considered by theChambers judge. Provided NSPI met this initial burden, then the responding party, AMCI, was required to show a real chance ofsuccess in its defence. [citations omitted] 15. ... Only if he were persuaded that NSPI had satisfied this initial threshold, would he then go on to ask himself the secondquestion, whether AMCI had demonstrated that it had a real chance of success in advancing the pleading set out in paragraph 8 of itsamended defence. [emphasis added] To similar effect: Eikelenboom v.

Holstein Canada, 2004 NSCA 103, para. 24; United Gulf Developments Limited. v. Iskandar, 2004NSCA 35, paras. 8-9, 15; Selig v. Cook's Oil Company, 2005 NSCA 36, paras. 9-10. In AMCI, paras. 16-17, Justice Saunders quotedOceanus Marine Inc. v. Saunders (1996), 1996 NSCA 139 , 153 N.S.R. (2d) 267 (C.A.), para. 20, per Pugsley J.A. andCampbell v.

Lienaux (1998), 1998 NSCA 70 , 167 N.S.R. (2d) 196 (C.A.), para. 14, per Cromwell J.A., stating that "[s]ummaryjudgment applications are not the appropriate vehicle for determining disputed facts, ...". [23] Eikelenboom is an example of the Stage 1 test being satisfied: 30 ... The material facts, as found by the Chambers judge, were not in dispute. The record as to what occurred prior to and in thepresence of the panel is evident from the transcript of the hearings and the answers to interrogatories of Mr. Kestenberg.

This is not acase where the motions judge had to reconcile competing affidavits from opposing sides. The only disagreement between the partiesconcerned the application of the law of waiver to undisputed facts in order to decide whether waiver had in fact occurred. This isprecisely what occurred in Gordon Capital, supra, where the only dispute concerned the application of the law, a point with which theCourt quickly dispensed in rather terse prose: The application of the law as stated to the facts is exactly what is contemplated by the

summary judgment proceeding. [emphasis added] AMCI, para. 35 reiterated this passage from Eikelenboom. [24] To summarize these authorities, Stage 1 requires the motions judge to ask whether there is a disputed issue of material fact. If theanswer is Yes, the judge should dismiss the application for

summary judgment, without engaging in Stage 2's assessment of the merits. Idisagree with Mr. Alex's submission quoted above (para. 15) that "... the moving party need not demonstrate that there are no materialfacts in dispute ...". That is precisely what the moving party must show at Stage 1. [25] Further, whether there is a disputed issue of material fact involves a comparison of both parties' evidence and positions. A disputeby definition engages more than one party. I disagree with Mr.

Alex's submission quoted above (para. 15) that at Stage 1 "... the motionsjudge is to look only at the evidence presented by the moving party." (Appellants' underlining). [26] Mr. Alex's submission assumes that Stage 1 assesses the strength of the moving party's case in isolation, then Stage 2 assesses thestrength of the responding party's case. This misunderstands the test. Stage 1 assesses whether there is a dispute of fact between theparties.

Then Stage 2, if it is engaged, assesses the relative merit of the parties' positions. [27] The disputed fact under Stage 1 must be "material", ie. essential to the claim or defence. A dispute over an incidental fact will notderail a

summary judgment motion at Stage 1. [28] Mr. Alex's submissions effectively would circumvent Stage 1 of the

summary judgment test, and move directly to Stage 2'squalitative assessment of the merits. That is not the law under Nova Scotia's Rule 13.04 according to the authorities I have cited. The twostages are sequential. Stage 2's assessment of the merits awakens only if Stage 1 (whether there is a disputed issue of material fact) is putto rest. Whether the responding party's evidence refutes the moving party's evidence does not relate to Stage 1's issue of whether there isa dispute. Rather it relates to the Stage 2's assessment of the merits of that dispute. [42] At this point a

summary of the analytical framework may be helpful. In the first stage the judge’s focus is concerned only withthe important factual matters that anchor the cause of action or defence. At this stage the relative merits of either party’s position areirrelevant. It is only if the judge is satisfied that the moving party has met its evidentiary burden of showing there are no material factualmatters in dispute that the judge will then enter into the second stage of the inquiry. The focus of that stage is not – as the judge put ithere – to see if the “undisputed facts ... give rise to a genuine issue for trial”.

That is a misstatement of the test established in Guarantee. Instead, the judge’s task is to decide whether the responding party has demonstrated on the evidence (from whatever source) whether itsclaim (or defence) has a real chance of success. This assessment, in the second stage, will necessarily involve a consideration of therelative merits of both parties’ positions. For how else can the prospects for success of the respondent’s position be gauged other than byexamining it along with the strengths of the opposite party’s position?

It cannot be conducted as if it were some kind of pristine, sterileevaluation in an artificial lab with one side’s merits isolated from the others. Rather, the judge is required to take a careful look at thewhole of the evidence and answer the question: has the responding party shown, on the undisputed facts, that its claim or defence has areal chance of success? [43] In the context of

summary judgment motions the words “real chance” do not mean proof to a civil standard. That is the burdento be met when the case is ultimately tried on its merits. If that were to be the approach on a

summary judgment motion, one wouldnever need a trial. [44] The phrase “real chance” should be given its ordinary meaning – that is, a chance, a possibility that is reasonable in the sense

that it is an arguable and realistic position that finds support in the record. In other words, it is a prospect that is rooted in the evidence, and not based on hunch, hope or speculation.

A claim or a defence with a “real chance of success” is the kind of prospect that if the judge were to ask himself/herself the question: Is there a reasonable prospect for success on the undisputed facts? the answer would be yes. [ 45 ] Having described the correct analytical framework both in terms of burden and sequential steps, I will now return to my analysis of the issues listed in ¶17, supra. #1 – Should leave to appeal be granted? [ 46 ] Here the respondent agrees that the appeal raises issues that are at least arguable on their face. I concur.

I would grant leave to appeal. #2 – Did the Chambers judge err by refusing to grant Burton

summary judgment? [ 47 ] In my respectful opinion, he did not. As I see it, there were a variety of significant contested questions of fact, mixed law and fact, or inferences to be drawn from disputed facts which were – as the judge found - ill-suited to a

summary judgment proceeding. His decision is replete with such references as well as the links to their evidentiary support in the record. For the purposes of this appeal I intend to only briefly review Justice Warner’s findings in this case. They are extensively canvased at ¶45-149 of his decision. It is enough for me to mention the principal material facts in dispute that Justice Warner viewed as defeating Burton’s motion for

summary judgment. Whether I would have come to the very same conclusion on all of these factual matters had I been hearing the motions, is not the test. Rather, looking at his reasons as a whole, I am not persuaded that they reveal any error in principle. [ 48 ] At the hearing Burton argued that Mr. Coady was an experienced and accomplished snowboarder; that it had no duty to warn him about the nature and potential dangers associated with the use of its snowboard; and that the waiver Burton presented to Mr.

Coady was irrelevant to the motion because the company did not rely upon the waiver to exempt itself from liability. [ 49 ] Warner, J. disagreed. He found that the waiver document had some relevance and informed several aspects of the case including a recognition and acknowledgement of the inherent danger in snowboarding, and the duty and standard of care owed by Burton to those to whom it lent snowboards. As part of its waiver agreement Burton required the signature of a parent or guardian if the user were under the age of 18. Before giving Mr.

Coady their snowboard they obtained his driver’s license from which they knew or would be presumed to know that he was 16 years of age. With respect, Burton’s statement at the hearing that it was not “relying” upon its own waiver for the purposes of the

summary judgment motion is far too simplistic. The waiver agreement prepared by Burton and signed by Coady is “evidence” and something upon which Mr. Coady can place reliance. There is no privity or ownership of evidence. On this motion Mr. Coady was entitled to rely upon the waiver and its content in resisting Burton’s motion and Warner, J. was undoubtedly able to take it into account as important evidence during his analysis. [ 50 ] Justice Warner reasoned: [90] Burton set up its kiosk at Ski Wentworth and offered to lend snowboards to the underage plaintiff and his two underage friends.

There is no evidence that Burton’s employees made any inquiries of these underage boys as to their skill level or experience; the plaintiff said that they did not. There is evidence that they provided the boys with a waiver agreement. It is reasonable to infer that the Burton employees would have been aware of both the printed contents of the waiver agreement and the entries made - and not made, on the forms by these boys, including the plaintiff.

The waiver agreement contains information which, on its face, informs the duty and standard of care owed by Burton to those to whom it lent snowboards. [91] There is no evidence before the Court on this motion that, having no knowledge of the skill level or experience of the plaintiff, the Burton employee(

s) placed any restrictions on where the plaintiff could go or what he could do with the Burton snowboard. [92] Burton relies entirely upon the discovery evidence of the plaintiff to argue that it is an undisputed fact that the plaintiff was an experienced snowboarder and that Burton’s snowboard was a superior snowboard to the plaintiff’s snowboard, in the sense that it gave him better control on the hill. ... [94] The so-called waiver agreement, titled “Snowboard Equipment Demo/ Rental, Agreement Not to Sue, Waiver of Claims and Assumption of Risk Agreement” signed, but not read, by the plaintiff, except for noticing the requirement for the signature of a parent or guardian if the user was under the age of 18, reads in part: “I am aware that snowboarding involves certain inherent risks, dangers and hazards which can result in serious personal injury or death.” [95] The form, prepared by Burton, requires the signature of the equipment user, the date of birth of the equipment user and the signature of the parent or guardian if the user is under the age of 18 years.

Coady was sixteen, and had left the age part of the form blank. [96] The waiver agreement is evidence that Burton, which is in the snowboard business, believes that snowboarding involves “certain inherent risks, dangers and hazards which can result in serious injury or death.” [97] That acknowledgment is not contradicted by any other evidence. At least for the purposes of this

summary judgment motion, it is some material evidence that informs the duty owed by Burton to any user of a demo snowboard pursuant to the agreement and is material to the standard of care owed by Burton to a user, such as the plaintiff. It is not logical that Burton would have no duty, as argued by it, to determine the capacity of those to whom it lends ‘really high end boards’ to determine the ability of those to whom it

lends these boards, to handle such boards in an activity that it warns involves inherent risks, dangers and hazards and for whom it requires the consent of parents or guardians for users under eighteen years of age. ... [99] For the purpose of this motion, some evidence exists that a duty of care (to warn a snowboarder, particularly a snowboarder under the age of 18, of the inherent risks of snowboarding and of the use of an unfamiliar high-end board) is owed by Burton.

I do not accept Burton’s submission that, based on the facts before me, it does not owe a duty of care to the users of its demo-boards, particularly under-age users. ... [101] Based on this acknowledgment and representation by Burton in the agreement, there is material evidence upon which a trial judge may find that Burton owed a duty to the plaintiff to warn him regarding the inherent dangers in using the snowboard, the risks of using unfamiliar equipment, and whether the Burton snowboard created a greater risk or potential for danger than the plaintiff’s own snowboard, and to determine whether he had the ability to safely use its board. [ 51 ] There is nothing in the judge’s reasoning which would cause me to intervene. [ 52 ] Warner, J. also declined to accept Burton’s characterization of Mr.

Coady’s level of proficiency as a snowboarder. As the judge noted: [103] The defendants rely heavily upon the plaintiff describing himself as an advanced snowboarder. The term “advanced” was not defined, and was not the plaintiff’s word, but the word of the cross-examiner. ... [ 53 ] The judge then went on to refer at length to portions of Mr. Coady’s discovery evidence which established that as far as Mr. Coady was concerned the snowboard he obtained from Burton was lighter and faster than his own, such that he gained much more speed than he was anticipating as he approached the barrel jib where he fell.

And so, quite apart from the surface conditions or the shape, location, dimension and warning markings related to this feature, Mr. Coady believed that the high end professional snowboard he was given was a factor in his accident. Clearly these were important factual matters which Burton disputed. They sought to absolve themselves from any liability based on their assertion that Mr.

Coady was a very experienced snowboarder, well versed in the inherent danger of the sport, fully capable of manoeuvring at that site and that neither the board they gave him nor the waiver agreement they neglected to have properly completed played any role in the permanent, disabling injury he sustained. [ 54 ] To all of this the judge said: [107] Absent evidence from Burton, and relying solely upon the evidence before the Court on this motion, there is some evidence that snowboarding involves inherent risks, dangers and hazards, and that the snowboard provided to the plaintiff was faster and lighter, and performed differently than the plaintiff’s own snowboard.

Burton acknowledges, for purposes of this motion that it did not warn of these risks. ... [111] However, Burton did create a waiver agreement that it required users to sign and which required the signature of a parent or guardian of a user under the age of 18. Moreover, Burton acknowledged in the waiver agreement that snowboarding involved inherent risks. This is evidence that informs the duty and standard of care on Burton to warn the plaintiff with respect to the use of its snowboard.

The plaintiff was a minor whose evidence in discovery on December 11, 2009, at the top of page 279, the only evidence before the court, was that he did not appreciate the risks and potential dangers of using Burton’s snowboard, a board that was faster and lighter than, and which performed differently from, the plaintiff’s own snowboard. .... [120] Applying the Guarantee test, I conclude that the plaintiff has demonstrated sufficient material facts exist, from his discovery evidence and the waiver agreement, to raise a genuine issue about the duty and standard of care owed by Burton to him and the possibility that breaches of Burton’s duty of care caused, subject to waiver and contributory negligence, Coady’s accident and injuries. [ 55 ] This brief

summary of important factual matters which are very much in dispute makes this case entirely distinguishable from my reasons in Eikelenboom v. Holstein Canada , 2004 NSCA 103 , where I wrote: [30] ... With respect, all of the surrounding circumstances were already well known. The material facts, as found by the Chambers judge, were not in dispute. The record as to what occurred prior to and in the presence of the panel is evident from the transcript of the hearings and the answers to interrogatories .... This is not a case where the motions judge had to reconcile competing affidavits from opposing sides.

The only disagreement between the parties concerned the application of the law of waiver to undisputed facts in order to decide whether waiver had in fact occurred. ... [ 56 ] These findings on the part of the judge were fully supported on the record and reason enough to reject Burton’s motion for

summary judgment on the basis that Burton had failed to meet its evidentiary burden under stage 1 of the inquiry. There is nothing in the judge’s assessment which would cause me to intervene. [ 57 ] Accordingly, there was no need for the judge to move into stage 2 of the analysis. Whether Mr. Coady will succeed in proving his other allegations which seek to attribute liability to Burton and/or Wentworth on the basis of supplying him with high-energy caffeinated beverages and/or some application of occupiers’ liability law should – as the judge determined – be left to be decided during a trial on the merits.

[58] On this record it is obvious that a whole host of genuine issues emerge from the cause of action and the defences advanced inthis case. They would include: causation; foreseeability; negligence; duty of care; standard of care; breach of the duty of care;contributory negligence; risk; degree of danger; warning; consent; and waiver. From my reading of Justice Warner’s reasons he wasalive to how a resolution of these matters would require a full trial on the merits. After a painstaking review of the record Warner, J.recognized that a

summary judgment hearing was not the proper forum to decide such difficult and hotly contested issues. [59] I will elaborate on one point that was central to Burton’s submissions. Burton’s factum [para. 54(a)] “does not dispute that itowed a duty of care to the Plaintiff”. Burton focussed instead on causation, for which Burton submitted that Mr. Coady fails bothbranches of the

summary judgment test. Burton’s factum says: 54(

d) There is no factual dispute about causation. ... 75. This does not mean, however, that the Plaintifff thus established a “real chance of success” of its claim Instead, and for thereasons already explained, the Plaintiff cannot establish the element of causation as required by law. ... [60] I respectfully disagree. There is a “genuine issue for trial” under Rule 13.04 on this matter. I say this for the following reasons. [61] Mr. Coady was 16 years old at the time of the accident. His youth is a factor that may elevate Burton’s standard of care. LewisN.

Klar et al, Remedies in Tort, looseleaf (consulted on 6 June 2013) (Toronto:Carswell, 1987) Chap. 20 at para. 37 says: A manufacturer has no duty to warn consumers of the dangers of use or misuse which are so apparent or well known to the ordinaryprudent person that a warning is unnecessary in law. One example would be a sharp knife; another, the effect of high voltage electricityon a person. However, a child and an adult have different capacities in their ability to appreciate risks. A risk which is obvious to anadult may not be obvious to a child.

The principles employed in determining the standard of care of a child beyond tender years, namely,what is reasonable for a child of like age, intelligence and experience, should be used in determining whether a risk is reasonably obviousto a child. Similarly, in Crocker v. Sundance Northwest Resorts Ltd., (SCC), [1988] 1 S.C.R. 1186, para. 21, Justice Wilson forthe Court said: 21 ... The common thread running through these cases is that one is under a duty not to place another person in a position where it isforeseeable that that person could suffer injury.

The plaintiff's inability to handle the situation in which he or she has been placed--eitherthrough youth, intoxication or other incapacity-- is an element in determining how foreseeable the injury is. ... [62] In Mr. Coady’s case, the degree, if any, to which Mr. Coady’s youth may affect Burton’s standard of care likely will be pivotal. The definition of the standard of care involves issues of fact, including the drawing of inferences from the evidence: see Johansson v.General Motors of Canada Ltd., 2012 NSCA 120, which discussed the topic at length. [63] The evidence on this

summary judgment record has meagre pickings from Burton. But one item we do have is Burton’s“SNOWBOARD EQUIPMENT DEMO/RENTAL, AGREEMENT NOT TO SUE, WAIVER OF CLAIMS AND ASSUMPTION OFRISK AGREEMENT”.

This document says (1) “snowboarding involves certain inherent risks, dangers and hazards which can result inserious personal injury or death.” (2) “THE RISKS INHERENT IN THE SPORT OF SNOWBOARDING CAN BE GREATLYREDUCED BY TAKING LESSONS, RIDING WITHIN MY ABILITIES AND USING COMMON SENSE AT ALL TIMES” and (3)“I HEREBY FREELY AGREE TO ASSUME AND ACCEPT ANY AND ALL KNOWN AND UNKNOWN RISKS OF INJURYWHILE USING THIS EQUIPMENT.” [capitalization on the form] There is a line for signature of the Equipment User, beside whichthere is another line over the words “Signature of Parent or Guardian if user Under the Age of 18”.

Mr. Coady signed without readingit. But there was no signature by his parent or guardian, and apparently no insistence by Burton that his parent or guardian sign beforeBurton gave the snowboard to Mr. Coady. [64] Mr. Coady suggests that, for the definition of Burton’s standard of care to a minor, Burton’s form supports the inference thatBurton has adopted a standard – i.e., that the parent is to lay eyes on the warning, which gives the parent an opportunity to talk sense intothe child before the child uses the snowboard. As to causation, Mr. Coady’s parents were at home in Enfield, over an hour’s driveaway.

So, if Burton had insisted on a parent’s signature, likely Mr.

Coady would not have obtained the snowboard that day, meaning theaccident and injury would not have occurred. [65] Burton, on the other hand, says that the form requires the parent’s signature solely because otherwise the waiver would belegally invalid, and the form carries no inference as to the standard of care. [66] Which of these competing views is preferable involves the drawing of inferences from the evidence – i.e., from the form itselfand from the testimony of witnesses who may speak to the circumstances surrounding the form, its creation and use.

This is a classic“genuine issue for trial” under Rule 13.04. [67] For all of these reasons I would not disturb the judge’s order. #3 - Did the Chambers judge err by ruling, in the alternative, that the motion for

summary judgment was premature? [68] At the hearing before Justice Warner, Mr. Coady advanced two other arguments as a basis for the court’s rejection of thedefendants’ motions for

summary judgment. First, Mr. Coady said the motions were premature. Second, he said the motions were notin the interests of justice. In his decision the judge described these “two other reasons” as “inter-related” (at ¶123). [69] Counsel for Burton challenged the plaintiff’s position. At the hearing before Warner, J. Mr. Machum, counsel to Burton, madethis submission: My Lord, we provided you with a brief on February 8th dealing with the issue of a motion for

summary judgement being premature, and

I would simply say, My Lord, that although there might have been decisions of this court previously looking at the issue of prematurity, my position in this brief is that the new rule, you either have to - - you have to either grant

summary judgement or not grant

summary judgement, and I would submit that adding in this layer of being able to assess whether something is premature or not goes against the reading of the rule. If you have that first step in there, then the words within the rules say that you must grant or dismiss

summary judgement have no effect. You could decide prematurity on every case and get around having to grant

summary judgement or dismissing it. So my brief, you would have seen, takes the position that there is no authority on you under that rule to determine whether something is premature or not. (p. 1133) [ 70 ] Respectfully, on this point I agree with Burton. Under CPR 13.04 as presently worded there is no residual inherent jurisdiction or discretion which would enable a judge to refuse a motion for

summary judgment on the basis that it was premature, or because other interests of justice might preclude it. [ 71 ] In the court below Justice Warner rejected Burton’s submissions. He decided, in the alternative, that Burton’s motion was premature and that he retained an inherent judicial discretion, notwithstanding the new wording for the test for

summary judgment under CPR 13.04, to refuse the motion for other reasons. Justice Warner stated the issue concisely as: [33] ... whether the wording of the new Rule for

summary judgment on the evidence still permits the motions judge to exercise discretion to refuse motions, apart from application of the Guarantee test, on the basis that the plaintiff has not yet had a fair opportunity to put his best foot forward or for other juridical reasons. [ 72 ] After citing at some length the decision of the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , Warner, J. reasoned that notwithstanding the differences in wording between the old 1972 Civil Procedure Rules , and the new January 1, 2009 Civil Procedure Rules (canvassed at ¶24 ff. of his decision) he could still decline to grant

summary judgment in cases where he thought the justice of the situation required it. To the extent that Warner, J. relied upon Combined Air as a basis for his conclusion I would, respectfully, say that he erred. That case is entirely distinguishable from this one and concerned the Ontario Court of Appeal’s review of the 2010 amendments to their Rule 20, in particular, the enhanced powers given to motions judges when dealing with

summary judgment applications. In my opinion neither the subject-matter of those consolidated proceedings nor the explicit changes to their Rule have any bearing on this case. [ 73 ] In Combined Air the Ontario Court of Appeal considered that province’s new

summary judgment rule 20.04(2.1) which provides: In determining under Clause 2(

a) whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the best interest of justice for such powers to be exercised only at a trial : 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence . (Underlining mine) [ 74 ] With respect, I think Warner, J. applied far too broad an

interpretation to the new CPR 13.04 and read into the Rule words which are no longer applicable. While nothing turns on it in this case, his erroneous

interpretation should be corrected for cases arising in future. [ 75 ] In Nova Scotia the

(1972) CPR 13.02 read in part: On the hearing ... the Court may on such terms as it thinks just , (

a) give directions as may be required for the examination of any party or witness or for the production of any books or documents or copy thereof, or for the making of any further inquiries . . . (

k) grant any other order or judgment as it thinks fit .” (Underlining mine) [ 76 ] New Rule 13.04 does not contain an express provision permitting the Court to “grant any other order or judgment” “as it thinks just.” Thus, under the old Rule the judge retained a discretion to deny

summary judgment, even where the moving party had been successful in satisfying the Guarantee test. Such relief would be available when, for example, the motion was premature, or when (to borrow the language in Combined Air, supra ) a fair and just resolution, based on a full appreciation of the evidence, could not be achieved by

summary judgment, or for other juridical reasons. [ 77 ] With respect, there is nothing in our new Rule to suggest or imply that any remnants of an overarching inherent jurisdiction to refuse

summary judgment, are retained. On the contrary, our new Rule provides: 13.04(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 . [Court’s emphasis] . . .

(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge. . . .

(6) The motion may be made after pleadings close . (Underlining mine) [ 78 ] In my respectful opinion, CPR 13.04 permits the motion for

summary judgment to be brought as soon as the pleadings are

closed . Each side is then obliged to put his/her best foot forward. A complaint of prematurity, or surprise, or a promise of future evidence will not be enough to defeat the motion. Rather, the judge will hear the motion and if the judge is satisfied that the two stages of the inquiry mandated under Guarantee have been met, the judge will be required to grant

summary judgment. There is – in those circumstances – no retained inherent jurisdiction to refuse the request for

summary judgment, such as there would appear to be in Ontario with the escape valve its Rule provides “unless it is in the best interest of justice for such powers to be exercised only at a trial”. [ 79 ] In Nova Scotia, CPR 13.04, as presently worded, does not create or retain any kind of residual inherent jurisdiction which might enable a judge to refuse to grant

summary judgment on the basis that the motion was premature or that other juridical reasons ought to defeat its being granted. The Justices of the Nova Scotia Supreme Court have seen fit to relinquish such an inherent discretion by adopting the Rule as written. If those Justices were to conclude that they ought to re-acquire such a broad discretion, their Rule should be rewritten to provide for it explicitly. [ 80 ] All of this is not to say that a party drawn into a

summary judgment hearing who is not at that time adequately prepared to resist it, is suddenly without a remedy and doomed to fail. Nor do these conclusions mean that a responding party will be forced to put his “best foot forward”, at the peril of

summary judgment, before he has access to the relevant evidence possessed by the moving party. The granting and denial of

summary judgment are not the judge’s only options under Rule 13.04. The judge also may adjourn, as an element of his procedural discretion. [ 81 ] Before addressing the utility of an adjournment in the

summary judgment context, I will review the disclosure between Mr. Coady and Burton:

a) On December 10 and 11, 2009, Mr. Coady was discovered by counsel for Burton and Wentworth. The transcript was dated March 12, 2010. On April 9, 2010, Burton filed this motion for

summary judgment.

b) Burton, on December 1, 2009, provided Mr. Coady with an unsigned affidavit of documents, which only included a 130 page Burton Dealer catalogue describing the variety of boards, boots, bindings and other accessories offered by the company and Burton’s Snowboard Equipment Rental Agreements, signed by Mr. Coady and by his two companions, Messrs. Oulton and Churchill. Mr. Coady has not had the opportunity to discover Burton’s witnesses. Mr. Coady’s counsel requested discovery of Burton’s witnesses, and suggested dates, but the scheduling was not arranged before the hearing of Burton’s motion for

summary judgment. On the

summary judgment motion, Burton’s only sworn evidence was its solicitor’s affidavit that attached the pleadings and excerpts from Mr. Coady’s discovery transcript. [ 82 ] Topics that might have generated pertinent evidence on a discovery of Burton’s witnesses include why Burton’s standard consent form required signed parental consent before a minor, such as Mr. Coady, could obtain the snowboard, and why Burton did not request that parental consent before giving the board to Mr. Coady on February 6, 2008. Neither by way of discovery nor at the

summary judgment hearing has Burton advanced a witness who could speak to these topics. [ 83 ] Burton asserts that the Rules, strictly interpreted, mean that whether or not the plaintiff’s counsel had an opportunity to discover the defendant’s witnesses is immaterial. Rule 13.04(3) says “the question of a genuine issue for trial depends on the evidence presented”.

Burton’s factum to the Court of Appeal (para. 92) says bluntly: ‘There either is sufficient evidence or there is not sufficient evidence.’ If the motion record has insufficient evidence to support the claim, urges Burton, the action should just be dismissed without idle speculation whether any potentially pertinent evidence may rest in the knowledge of the defendant’s undiscovered witnesses. From a similar perspective, Burton’s written submission to the Chambers judge said: 18. Burton submits that by permitting parties to bring motions for

Summary Judgment after pleadings close, the Rules contemplate bringing

Summary Judgment prior to the completion of discovery in their stated purpose of determining every proceeding in a just, speedy and inexpensive manner. This latter passage invokes the “Object of these Rules” prescribed by Civil Procedure Rule 1.01: 1.01 These Rules are for the just, speedy and inexpensive determination of every proceeding. [ 84 ] I respectfully disagree with Burton’s

interpretation of Rule 1.01. [ 85 ] The “just” determination that Rule 1.01 mandates does not contemplate a

summary judgment – because the responding party failed to put his “best foot forward” – before this responding party has had a reasonable opportunity to “better” his case with discovery of the relevant evidence that is possessed by the moving party. Ambush is not a criterion for the just, speedy and inexpensive determination of a proceeding.

The lever to achieve the “just” result, in these circumstances, is an adjournment. [ 86 ] If the motions judge is satisfied that the responding party reasonably requires disclosure, production or discovery, or an opportunity to present expert or other evidence before he is in a position to “put his best foot forward”, then the judge should adjourn the motion so that those steps may be taken. Whether the adjournment is without day, or to a fixed date, or attaches conditions and a

schedule for production, discovery, and the like, will turn on the judge’s appreciation of the circumstances in each case. Of course, if the judge is satisfied that the responding party does not reasonably require further information, and is just procrastinating to forestall

summary judgment, then an adjournment should be denied. [ 87 ] Before turning to the final issue raised on appeal, I wish to provide a quick

summary of the law as it presently stands in Nova Scotia concerning

summary judgment litigation. From the jurisprudence to which I have referred as well as the case law cited therein, a series of well-established legal principles have emerged. I will list these principles in the hope that their enumeration will serve as a helpful checklist or template to guide counsel and judges in their application. In Nova Scotia:

Summary judgment engages a two-stage analysis. 2. The first stage is only concerned with the facts. The judge decides whether the moving party has satisfied its evidentiary burden of proving that there are no material facts in dispute. If there are, the moving party fails, and the motion for

summary judgment is dismissed. 3. If the moving party satisfies the first stage of the inquiry, then the responding party has the evidentiary burden of proving that its claim (or defence) has a real chance of success. This second stage of the inquiry engages a somewhat limited assessment of the merits of the each party’s respective positions. 4. The judge’s assessment is based on all of the evidence whatever the source. There is no proprietary interest or ownership in “evidence”. 5. If the responding party satisfies its burden by proving that its claim (or defence) has a real chance of success, the motion for

summary judgment is dismissed. If, however, the responding party fails to meet its evidentiary burden and cannot manage to prove that its claim (or defence) has a real chance of success, the judge must grant

summary judgment. 6. Proof at either stage one or stage two of the inquiry requires evidence. The parties cannot rely on mere allegations or the pleadings. Each side must “put its best foot forward” by offering evidence with respect to the existence or non-existence of material facts in dispute, or whether the claim (or defence) has a real chance of success. 7. If the responding party reasonably requires disclosure, production or discovery, or the opportunity to present expert or other evidence in order to “put his best foot forward”, then the motions judge should adjourn the motion for

summary judgment, either without day, or to a fixed day, or with conditions or a

schedule of events to be completed, as the judge considers appropriate, to achieve that end. 8. In the context of motions for

summary judgment the words “genuine”, “material”, and “real chance of success” take on their plain, ordinary meanings. A “material” fact is a fact that is essential to the claim or defence. A “genuine issue” is an issue that arises from or is relevant to the allegations associated with the cause of action, or the defences pleaded. A “real chance of success” is a prospect that is reasonable in the sense that it is an arguable and realistic position that finds support in the record, and not something that is based on hunch, hope or speculation. 9.

In Nova Scotia, CPR 13.04, as presently worded, does not create or retain any kind of residual inherent jurisdiction which might enable a judge to refuse to grant

summary judgment on the basis that the motion is premature or that some other juridical reason ought to defeat its being granted. The Justices of the Nova Scotia Supreme Court have seen fit to relinquish such an inherent jurisdiction by adopting the Rule as written. If those Justices were to conclude that they ought to re-acquire such a broad discretion, their Rule should be rewritten to provide for it explicitly. 10.

Summary judgment applications are not the appropriate forum to resolve disputed questions of fact, or mixed law and fact, or the appropriate inferences to be drawn from disputed facts. 11. Neither is a

summary judgment application the appropriate forum to weigh the evidence or evaluate credibility. 12. Where, however, there are no material facts in dispute, and the only question to be decided is a matter of law, then neither complexity, novelty, nor disagreement surrounding the

interpretation and application of the law will exclude a case from

summary judgment. This brings me to the last issue which concerns the judge’s disposition on costs. #4 - Did the Chambers judge err in his award of costs? [ 88 ] In disposing of costs Warner, J. said this: [234] The parties made oral submissions on costs at the end of argument. Tariff C applies. [235] This was a complex matter. It was of great importance to all parties, as success on the motions would have ended the litigation. The possible quantum of damages is unknown, but the injury to the plaintiff appears to have been very serious. The motion, scheduled for one day, consumed six days.

The starting point for a six day chambers motion, without application of a multiplier, is $12,000.00. [236] In my view, the complexity and importance of the matter to the parties merits a multiplier of at least two. [237] The plaintiff should have his costs in the amount of $24,000.00, plus reasonable disbursements as verified by affidavit, one half from each of the defendants. [238] This litigation is likely to continue for some time. There is no evidence that either defendant is impecunious or would be unable to continue this litigation if it paid costs forthwith.

For the reasons expressed in Merks Poultry Farms v Wittenberg , 2010 NSSC 395 , costs should be payable forthwith. [ 89 ] Burton raises three objections. It says the judge ought not to have applied a multiplier under Tariff C. He should have recognized “the ostensible agreement” between Burton and Mr. Coady that “Burton should only have to pay $4,000 in the event that it is unsuccessful”.

Finally “because Wentworth was far more active than Burton” during the hearing of the motions it was unfair for the judge to have ordered that the costs of $24,000 plus reasonable disbursements be divided equally between each of the two defendants. [ 90 ] At the hearing in this Court counsel for Burton urged that we comment upon this aspect of the case and “breathe new life” into the application of the Tariffs in motions such as this.

[91] I decline to do so. The transcript of Mr. Coady’s extensive discovery examination demonstrates to me the close collaborationbetween counsel for Burton and Wentworth in framing questions and building upon the responses each obtained during the lengthysessions. I have no doubt the defendants would continue to co-operate in defending the action and pursuing common tactics whenever itworked to their mutual advantage. Further, from my review of the transcript, counsels’ submissions on costs at the end of the hearingseemed hurried and superficial.

They hardly establish the kind of record we would wish to have before considering a variation of thejudge’s order. On the contrary, his disposition seems fair and sensible to me. I am not persuaded that there is any good reason to disturbJustice Warner’s costs award.

Conclusion [92] With great respect to my colleague Justice Beveridge who writes in dissent, it is obvious that he and I have a very differentview of the evidence, the facts, the inferences that a trier might draw from the facts, and the reach of the pleadings against Burton. [93] I agree with Justice Warner’s conclusion that there are many material facts in dispute which ground a variety of important issuesthat will require a full trial to resolve. Mr. Coady deserves to have his lawsuit against Burton and Wentworth tried on its merits.

Inreaching that conclusion Justice Warner did not err in principle; neither did his decision produce a patently unjust result. [94] While he was wrong to decide, in the alternative, that he had a residual inherent jurisdiction to dismiss the

summary judgmentmotions on the basis that they were premature, that error does not change the result in this case. [95] The judge’s disposition of costs was well within his discretion and I see no reason to disturb it. [96] Accordingly, I would grant leave, but would dismiss the appeal. In accordance with counsels’ submissions at the appeal, Iwould award Mr. Coady his costs on appeal in the amount of $1,500 plus reasonable disbursements. I would award the respondentWentworth its costs on appeal in the amount of $1,000 plus reasonable disbursements. Saunders, J.A. Concurred in: Oland, J.A. Hamilton, J.A.

Fichaud, J.A. Dissenting Reasons Beveridge J.A.: [97] I have had the privilege of reading, in draft, the reasons of my colleague, Justice Saunders. With great respect for his views, Iam unable to agree with his analysis, and conclusion that the motions judge made no error in principle in refusing to grant

summaryjudgment in favour of Burton. I also do not agree that a justice of the Supreme Court is deprived of his or her inherent jurisdictionbecause of the amendment to Civil Procedure Rule 13.04(1); nonetheless, the judge erred in concluding that he would also refuse togrant

summary judgment on the basis of prematurity. [98] I do not disagree with my colleague’s careful articulation of the traditional test to be applied on a motion for

summary judgment(¶26-28; ¶42-45). It is how this test was applied to the record before the motions judge with which I disagree. I will elaborate. [99] As between Burton and the respondent Coady, there were no differing accounts to be resolved. Burton accepted, for the purposesof the

summary judgment motion, the evidence of Mr. Coady. No issues of credibility or reliability of evidence needed to be resolved ina trial. The facts were as outlined in the sworn evidence given on discovery by Mr. Coady. The task of the motions judge was to applythe law to those facts. With respect, he declined to do so. [100] Saunders J.A. , for the Court, in Eikelenboom v. Holstein Canada, 2004 NSCA 103 reviewed the leading cases of the SupremeCourt of Canada in Hercules Management and Guarantee.

In reference to the latter, he wrote of the recognized duty of a motions judgeto apply the law to the facts: [24] At ¶28, the Court expressed its concurrence with the motions court judge’s finding that “the only disputes were on theapplication of the law.” Notwithstanding the complexity of factual and legal issues surrounding the claim, and that the application of thelaw to the circumstances of the case was strongly contested, the Court held that it was an appropriate case for

summary judgment.Iacobucci and Bastarache, J.J., writing for a unanimous five member Court, described the test and shifting burdens of persuasion thatarise in an application for

summary judgment at ¶27: The appropriate test to be applied on a motion for

summary judgment is satisfied when the applicant has shown that there is no genuineissue of material fact requiring trial, and therefore

summary judgment is a proper question for consideration by the court. See HerculesManagement Ltd. v. Ernst & Young, (SCC), [1997] 2 S.C.R. 165 (S.C.C.) at para. 15; Dawson v. Rexcraft Storage &Warehouse Inc. (1998), (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.) at pp. 267-68; Irving Ungerman Ltd. v. Galanis(1991), (ON CA), 4 O.R. (3d) 545 (Ont. C.A.) at pp. 550-51. Once the moving party has made this showing, the

respondent must then “establish his claim as being one with a real chance of success.” Hercules , supra, at para. 15. In allowing the appeal, setting aside the judgment of the Ontario Court of Appeal and restoring the decision of the motions court judge granting

summary judgment in favour of the fidelity insurer, the Court stated: [28] The limitation period defence raises mixed questions of fact and law. O'Brien J. found that the only disputes were on the application of the law . We find no reason to disturb this finding. ... [35] We agree that there is no legal issue to be resolved at trial. The application of the law as stated to the facts is exactly what is contemplated by the

summary judgment proceeding. ... [36] We would therefore conclude that the motions judge committed no error in determining that this was a proper case for

summary judgment. Gordon has not met the evidentiary burden to show there is a genuine issue for trial. [Emphasis in original] [101] Justice Saunders found in Eikelenboom that the motions judge erred in declining to grant

summary judgment – there were no evidentiary matters in dispute, and hence should have proceeded to decide rather than defer to a trial judge. His analysis is worth repeating: [30] For reasons that are not clear to me, the learned Chambers judge concluded that only after a full trial where the judge might “examine all the surrounding circumstances” or where “[a]ll, the circumstances both before and during the hearing before the Committee” could be considered would it be possible to decide if waiver had occurred. With respect, all of the surrounding circumstances were already well known.

The material facts, as found by the Chambers judge, were not in dispute. The record as to what occurred prior to and in the presence of the panel is evident from the transcript of the hearings and the answers to interrogatories of Mr. Kestenberg. This is not a case where the motions judge had to reconcile competing affidavits from opposing sides. The only disagreement between the parties concerned the application of the law of waiver to undisputed facts in order to decide whether waiver had in fact occurred.

This is precisely what occurred in Gordon Capital , supra, where the only dispute concerned the application of the law, a point with which the Court quickly dispensed in rather terse prose: The application of the law as stated to the facts is exactly what is contemplated by the

summary judgment proceeding. [31] For the reasons stated, this motion is one that required an application of the law to the undisputed facts. The Chambers judge erred in declining to resolve the matter before her by way of

summary judgment. As cases like Hercules and Gordon have shown, while such an analysis may well be difficult and contentious, neither complexity nor controversy will exclude a proper case from the rigours of

summary judgment. [102] With these principles in mind, I will turn to the claims Mr. Coady made against Burton. Because Coady’s response to the

summary judgment motion was primarily a complaint of prematurity, and the motions judge declined

summary judgment also on that basis, I will also refer to the chronology of events surrounding the

summary judgment motion since that informs the issue of prematurity. [103] Mr. Coady’s claims of liability against Burton were four: it owed a duty to warn Mr. Cody about the “nature and potential danger of the new snowboard” he was about to use; Burton was an occupier of the Wentworth Ski Resort, and as such owed a duty of care under the Occupiers’ Liability Act , S.N.S., 1996, c.27; it failed to verify Mr.

Coady’s age before handing over the snowboard; it provided a high energy caffeinated drink in contravention of the Food and Drugs Act , R.S.C. 1985, c.F-27. [104] The particular pleadings against Burton were as follows: [8] The Plaintiff suffered catastrophic personal injuries of a permanent nature, including, but not limited to, a burst fracture in the CS vertebrae with damage to the spinal cord resulting in partial paralysis. The Plaintiff states that these injuries would not have occurred but for the negligent acts of the Defendant Burton, particulars of which are as follows: (

a) failed to warn the Plaintiff about the nature and potential danger of the new snowboard; (

b) failed to verify the age of the Plaintiff before handing over the snow board; (

c) provided the Plaintiff easy access to a [ sic ] high energy caffeinated beverages, a Natural Health Product, contrary to s. 14 of the Food and Drugs Act , R.S. C. 1985, c. F-27, in combination with free new snowboard demos without proper, or any, supervision, particulars of which are as follows:

i. The Plaintiff obtained an Amped energy drink, free of charge, at the Burton Kiosk, from a Burton representative, at approximately the same time as obtaining [a] demo snowboard and the Plaintiff consumed the Amped energy drink prior to his accident; ii. The Amped energy drink had physiological effects on the Plaintiff which contributed to this accident including, but not limited to: 1. Stimulatory effects on the central nervous system; 2. Changes in blood pressure; 3. Changes in heart rate: 4. Changes in mood; and 5. Changes to the decision making process; (

d) and such other negligence as may appear. [105] Mr. Coady was discovered on December 10 and 11, 2009. On April 9, 2010 Burton filed its motion for

summary judgment. Burton’s motion was scheduled to be heard on September 8, 2010, as a half day hearing. Then Wentworth filed its motion for

summary judgment on April 27, 2010. [106] The record before us does not disclose the exact sequence of events, but at least by the beginning of October 2010, both

summary judgment motions were scheduled for the full day of January 27, 2011. All parties agreed that the motions by Burton and Wentworth be heard together. [107] Examinations for discovery of representatives of Burton and Wentworth had been scheduled. For reasons not disclosed in the record, the examinations were cancelled by Coady. “Throw away costs” were r

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