Canada: New Summary Judgment Motion Rule Introduced In New Brunswick: More Than Just A Tool To Dismiss Meritless Claims

As of January 1, 2017, Rule 22 of the New Brunswick Rules of Court for 'Summary Judgment' was repealed and replaced.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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Osler, Hoskin & Harcourt LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions