In sports, players and coaches prepare for "Game Day". In the days prior to a game, they will review video of their opponent, hold meetings to develop and review a game plan, and diligently practice so that they will be fully ready when the game starts. Everyone wants to win and for those teams who want to win at every opportunity, they know that the preparation which takes place away from the playing arena or playing field will greatly improve their chances when the game is played.

It can also be expected that a team who is not prepared for game day highly risks losing, and losing badly.

Summary judgment motions in civil litigation share a similar theme.

What does or does not happen in the courtroom often depends on what takes place before a judge takes his or her seat on the bench to hear the summary judgment motion.

Summary judgment motions are dependent on evidence, and therefore parties who fail to adequately file evidence to either support their action or their defence risk losing.

Litigants can't fight a motion for summary judgment on the basis that the evidence they might rely upon will be provided to the court at a later date. Like sports teams, litigants need to be prepared for "Game Day."

In the recent case of CMT v. Government of PEI,1 the Plaintiffs' lack of preparedness as a result of failing to file evidence in response to a motion for summary judgment contributed to the Plaintiffs' case being dismissed.

This case is noteworthy for three reasons.

First, the judge comprehensively analyzed the PEI summary judgment rules, which have been adopted from Ontario's rule 20.

Second, the judge thoroughly examined the issue of misfeasance in public office and concluded, among many things, that persons who are privately engaged by government or government either in the capacity of an outside legal counsel or an external consultant cannot be liable for the intentional tort.

Finally, this decision emphasizes that a party responding to a summary judgment motion cannot rest on its laurels and rely on an argument that it will adduce further and better evidence at trial in the hopes of defeating the motion.

The Action

The Plaintiffs' action arose out of a series of events that took place between 2010 and 2014.

In or around that time, the Mi'kmaq Confederacy of Prince Edward Island proposed to licence and regulate online gambling in the province.

Various professionals and consultants were engaged and a working group was established. A UK company was also engaged to design and establish an electronic payments platform. However by February 2012, the government decided to withdraw its support for the proposal because it was viewed that the proposed scheme contravened the Criminal Code.

Four months later, in a separate development, a memorandum of understanding was entered into by a government agency and a numbered company to explore the establishment of a financial services centre on the island.

But in September 2012, someone who had connections with the numbered company came under investigation for suspicious trading activities. The numbered company and one of the Plaintiffs were also subjects of the investigation. The investigation concluded that over $700,000 had been raised in contravention of PEI's securities laws and a securities law National Instrument, which resulted in a settlement agreement between the securities regulator and those under investigation in which the contraventions of the law were acknowledged.

The Plaintiffs' proposed establishment of a global transaction platform in PEI was based on the design model that had been proposed for online gambling. But again, the government eventually did not proceed with the establishment of any global transaction platform for the island, and the Plaintiffs sued for breach of contract, misfeasance in public office and spoliation of evidence on the part of some government actors.

Eventually the Defendants, some of whom were lawyers in private practice or were private consultants, brought separate summary judgment motions to dismiss the Plaintiffs' claim.

Critical to the motions was the Plaintiffs' failure to provide evidence to support the pleaded causes of action.

Elements of a Summary Judgment motion

PEI's summary judgment rule is exactly the same as Ontario's rule 20. Accordingly, all of the tests that apply to a summary judgment motion in Ontario apply to a summary judgment motion in PEI, and all of the powers possessed by an Ontario judge in determining a summary judgment motion are possessed by a judge in PEI.

Summary judgment motions are governed by a two-part test.

Under the first part, the moving party is required to show that there is no material fact in issue which would create a genuine issue requiring a trial.

Under the second part, once the moving party has discharged his or her burden, the responding party is required to adduce evidence to establish that the position taken in his or her pleading has a real chance of success.

The court recognized that both parties on a motion for summary are obligated to be "put their best foot forward" or, in other words, "lead trump or risk losing". What this means is that a party cannot indicate to the court that they intend to rely on "further or better evidence at trial" to prove their case. Instead a party is obligated to present the court with specific facts to refute allegations or evidence that harms their case, and the Court is entitled to assume that all such evidence is in fact before it on the motion.

The failure to provide such facts and evidence will be fatal to a party's case.

In summing up a party's obligation on a summary judgment motion, Gavin Tighe, senior partner at Gardiner Roberts LLP who represented two of the moving parties in this case, explained that when a motion for summary judgment is heard before the court "It's Game Day!".

On the separate motions, the Defendants attacked the nature and the quality of the Plaintiffs' evidence.

They submitted that the Plaintiffs had failed to provide any "direct" or "personal" evidence to support their allegations.

In contrast, the Plaintiffs contended that they would produce the necessary evidence at trial.

The court rejected the Plaintiffs' position. The Plaintiffs had not put their best foot forward and accordingly the motions judge dismissed their action.

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1. 2019 PESC 40

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.