NOVA SCOTIA COURT OF APPEAL Citation: Hogeterp v. Huntley, 2007 NSCA 75 Date: 20070621 Docket: CA 277641 Registry: Halifax Between: Theodore Hogeterp v. Joellen Lynn Huntley, by her litigation guardian, Byron Huntley, Louise Huntley, Andrew Larkin and Karen Larkin Respondents Judges: Roscoe, Saunders and Oland, JJ.A. Appeal Heard: June 12, 2007, in Halifax, Nova Scotia Held: Leave to appeal is granted and the appeal is dismissed with costs, per reasons for judgment of Roscoe, J.A.; Saunders and Oland, JJ.A. concurring. Counsel: Michael Dunphy, Q.C. and Michelle Kelly, for the appellant Nancy G. Rubin, for the Larkin respondents Raymond Wagner, for the Huntley respondents Reasons for judgment: [1] This is an application for leave to appeal and, if granted, an appeal from an order of Justice Glen G. McDougall dismissing a summary judgment application brought by the defendant, Theodore Hogeterp. Background: [2] On April 18, 1996 a car driven by 16 year old Andrew Larkin veered off the road and struck a power pole on Route 359, Centerville, Nova Scotia. Two of the passengers, his sister, Elizabeth Larkin age 8, and Brian Thompson age 15, were killed. The third passenger, Joellen Huntley, also 15 at the time, suffered severe injuries including traumatic brain injury that has rendered her unable to communicate, totally disabled and totally dependant. The driver said that he swerved to avoid hitting a dog that ran onto the highway in front of the car. [3] Joellen Huntley and her parents brought action against Andrew Larkin and his mother, who owned the vehicle, alleging negligence in the ownership and operation of the vehicle. They also named Theodore Hogeterp as a defendant. Mr. Hogeterp was a farmer who owned land on both sides of the road at the site of the accident. The plaintiffs contend that he owned the dog in question and they allege negligence in failing to keep his dog off the highway. [4] The defence of Mr. Hogeterp is that he was not the owner of the dog in question. The defendants have cross-claimed against each other. Evidence on the application for summary judgment: [5] Mr. Hogeterp submitted that there was no evidence supporting the claim that he owned the dog that ran onto the highway, and therefore the claim against him should be dismissed summarily. The evidence presented by Mr. Hogeterp on the summary judgment application consisted of his affidavit and two affidavits of Michelle Kelly, one of his lawyers. [6] In his affidavit, Mr. Hogeterp swore that on the date of the accident he owned one dog, Tasha. He attached photograph in which the dog appears to be reddish brown in colour. He swears that at the time of the accident Tasha was tied to tree in his yard. He says that his brother lives nearby, and he owned black Labrador at the time of the accident and attached photograph of his brother’s dog. The photo is one taken by the plaintiffs’ investigator Robert Zaun. [7] Ms. Kelly’s first affidavit in support of the application has appended as exhibits: a. portions of Mr. Hogeterp’s discovery evidence and his answers to interrogatories, in which he swears that his dog, Redbone Coonhound, was tied to tree at the time of the accident. In the answers to the interrogatories Mr. Hogeterp indicated that his brother’s black Lab was born in the spring of 1996; b. part of the discovery evidence of Andrew Larkin in which he says that the dog he saw before the accident was medium sized black dog. He also states that the reddish brown dog shown in the photo, and identified by Mr. Hogeterp as being Tasha, was not the dog that he swerved to avoid and that the black Lab said to be Mr. Hogeterp’s brother’s dog could have been the dog on the road; c. part of the discovery evidence of Dennis Wilson, the first person to arrive at the scene of the accident. He said that he saw glimpse of dog running nearby and that the dog was medium sized dark coloured dog. Later he said it was “dark brownish”; d. statement given to Robert Zaun on April 7, 1997 by Mr. Wilson. Mr. Zaun is an investigator retained by the plaintiffs. In that statement, Mr. Wilson indicated that as he approached the scene of the accident: “I saw dark brown dog ... The dog that saw at the scene is the same dog have many many times have seen at the Dutch dairy farm (Hogeterp Farm). know this dog because on at least four (4) occasions nearly struck this dog, at this general location while driving my car on Highway #359.” At the end of the statement just above Mr. Wilson’s signature, it says: have had the opportunity to read this statement and have read it. There are no changes wish to make on my statement. This statement is true and correct to the best of my ability. However, in his discovery evidence, Mr. Wilson said that he signed the statement given to Mr. Zaun without reading all of it and that he actually told him he could not identify the dog. [8] Ms. Kelly’s second affidavit attached copy of portion of the discovery evidence of Mr. Zaun in which he described the circumstances in which he took the photograph of dog at Mr. Hogeterp’s farm. The photograph is of the dog said by Mr. Hogeterp to be the black Lab owned by his brother. Mr. Zaun however indicated that although in the photo, which was taken with zoom lens, the dog appears to be black, it appeared to his naked eye to be reddish brown. [9] In response to the application, the Huntleys filed the affidavit of articled clerk, Mike Dull. Counsel for Mr. Hogeterp objected to the form and substance of the affidavit and more will be said about that later in these reasons. Mr. Dull’s affidavit attached: a. portions of the transcript of discovery evidence of Mr. Hogeterp, Mr. Zaun, Mr. Wilson, and Andrew Larkin, as in Ms. Kelly’s affidavit; b. the April 7, 1997 statement of Mr. Wilson to Mr. Zaun; c. an Environment Canada weather report which indicated the amount of rainfall on the day of the accident; d. another photograph taken by Mr. Zaun of dog at the Hogeterp farm which shows that the part of the dog in bright sunlight is reddish brown in colour but the part in the shade appears to be black; e. report from “dog expert” about the characteristics of Redbone Hound dogs; f. the statement of Alfred Parks dated May 5, 1997. Mr. Parks came upon the scene shortly after the accident. He stated that while driving in that area at other times he has seen “lightish brown midsize dog” on both sides of the road close to the road and had never seen any other dog in that vicinity. [10] As well, Mr. Dull referred to conversations Mr. Wagner, plaintiffs’ counsel had with “an unnamed investigating RCMP constable” about Mr. Hogeterp’s dog and indicated that the plaintiffs intended to call the officer as witness at trial. [11] Mr. Dull also states: 15. The plaintiff has additional witnesses who drive past the Defendant’s farm often numerous (sic) times. They have witnessed at numerous times medium brown or red dog running unsupervised on the Defendant’s property. To avoid this dog, one witness has had to suddenly stop the vehicle to avoid an accident. The Plaintiff is reluctant to disclose the identity of these witnesses in light of the changes in Mr. Wilson’s statements following his visit from Lombard Insurance. [12] The Larkin defendants filed the affidavit of Andrea Baldwin, one of their lawyers, to which was attached handwritten statement of Dennis Wilson given to the RCMP on April 20, 1996, two days after the accident. That statement sets out what he observed upon arriving the scene and includes the following: ... Then noticed dog, on the same side of the road, about 60 feet from the car, running toward me. ... When first saw this accident scene, there was not another car around. The only thing moving was that dog. It was dark like brown, mid size maybe, I’m not sure. think it may have been the same dog almost hit twice before in that area. can’t say it was that dog but it’s there quite often. really can’t remember exactly what (sic) the dog at the accident was brown it wasn’t the focus of my attention. can say it was dog Probably brown that’s all can say. The decision under appeal: [13] Justice McDougall dismissed the motion for summary judgment. His decision is reported as: 2007 NSSC 54 (CanLII); [2007] N.S.J. No. 84 (Q.L.). After citing the relevant law and applicable test on summary judgment applications, the chambers judge summarized the evidence from the affidavits. With respect to the objection to the affidavit filed by Mr. Dull, he said: 31 Although there are numerous defects in the affidavit filed by the respondent in opposing this application including hearsay, double hearsay and triple hearsay along with opinion evidence that is clearly inadmissible. Also the affiant fails to indicate in certain instances the source of the information relied upon or chooses not to disclose his source and furthermore fails to express an honest belief in the information provided in certain instances. Having said this, have relied on certain portions of Mike S. Dull (Articled Clerk)'s affidavit to which is attached number of exhibits. have also considered the affidavit of Andrea F. Baldwin, Barrister and Solicitor and the exhibits attached thereto. [14] The chambers judge concluded by stating: 32 After considering all the materials filed for this application and the written and oral submissions of counsel, am satisfied that the applicant has met the burden placed upon him in step one of the two step test. 33 am also satisfied that the respondent with the support of counsel for the "Larkin" defendants has met the burden imposed by the second step in that there is at least genuine issue that should be left to be determined at trial. There are factual issues that will have to be resolved and issues, as well, of credibility that should not be decided on summary judgment application. As stated by Cromwell, J.A., in the case of Campbell v. Lienaux (1998), 1998 CanLII 1828 (NS CA), 167 N.S.R. (2d) 196; 502 A.P.R. 196; [1998] N.S.J. No. 142 (N.S.C.A.) at para. 14: 14 Summary judgment applications are not the appropriate vehicle for determining disputed facts, difficult questions about the appropriate inferences to be drawn from facts or complex legal questions .... 34 Not only am bound by this Nova Scotia Court of Appeal decision, heartily accept and endorse it. 35 believe the matter before me would be best left for final determination at trial. The application for summary judgment is therefore dismissed. Grounds of appeal: [15] The issues on appeal are: 1. Did the chambers judge err in admitting and relying on the affidavit of Mr. Dull? 2. Did the chambers judge err in dismissing the application for summary judgment? Leave to Appeal: [16] Counsel for the Larkins urged us to deny leave to appeal and although it is not the court’s usual practice, to state reasons for denying leave. She refers to cases from Saskatchewan and British Columbia where the courts of appeal require party appealing from an interlocutory order to establish, for example, that the issues are important or significant, have prima facie merit and that the appeal will not unduly delay the progress of the action. See: Schroeder v. Korf, [1996] S.J. No. 388 (C.A.) and Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp., [1988] B.C.J. No. 1403 (C.A.). These are both decisions of one judge sitting in chambers. [17] In Nova Scotia the requirement for leave to appeal an interlocutory order is found in the Judicature Act R.S.N.S. 1989, c. 240 as amended, s. 40: 40 There is no appeal to the Court of Appeal from any interlocutory order whether made in court or chambers, save by leave as provided in the Rules or by leave of the Court of Appeal. [18] The Act defines Court of Appeal as: (aa) "Court of Appeal" means the Nova Scotia Court of Appeal and includes judge thereof whether sitting in court or in chambers; [19] However, traditionally leave applications are not heard by judge alone in this court as they are in some other provinces. Our Rules provide that leave applications are heard by panel of three judges of the court, not single judge unless leave is specifically authorized to be done by judge. Rule 62.11 states: 62.11. In addition to any other powers conferred by Rule 62 or otherwise, Judge may at any time and on such terms as he deems just, on the application of the Registrar or of any party to an appeal, order that ... (c) leave or permission to appeal be granted or refused where by an enactment application for leave or permission to appeal must be made to Judge before notice of appeal can be given; [20] In Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board) (1996), 1996 CanLII 5240 (NS CA), 154 N.S.R. (2d) 358 Justice Hallett discussed the limited jurisdiction of single judge of the court. As result of the custom to require panel to hear leave applications, normally the leave application is heard at the same time as the appeal, and the court rarely explains why leave is granted or not. Hearing the application and the appeal together is contemplated by Rule 62.23(3). One exception to this is the process followed in appeals from the Worker’s Compensation Tribunal where separate hearing is held by panel to determine the leave application. (See: Doward v. Workers Compensation Board (NS) (1997), 1997 CanLII 14985 (NS CA), 160 N.S.R. (2d) 22 (NSCA) [21] In the limited number of cases where the court or judge has given reasons for granting leave to appeal, the threshold is usually whether the appellant has raised an arguable issue. See, for example: Michelin North America (Canada) Inc. v. Richard Ross, 2002 NSCA 87 (CanLII); 2002 NSCA 102 (CanLII), 207 N.S.R. (2d) 292. [22] Despite the able argument of counsel for the Larkins, am not persuaded that the court should follow the example of other jurisdictions and add to the requirements or increase its usual standard for granting leave to appeal an interlocutory order. In this case, am satisfied that the appellant has raised an arguable issue and would grant leave to appeal. Standard of Review: [23] Since the application for summary judgment was dismissed, the order did not have terminating effect. Thus the standard of review is the usual standard applied to appeals of interlocutory orders. We will not intervene unless wrong principles of law were applied or patent injustice would result. See: Maritime Travel Inc. v. Go Travel Direct.Com Inc., 2007 NSCA 11 (CanLII); United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 (CanLII); Eikelenboom v. Holstein Assn. of Canada, 2004 NSCA 103 (CanLII), Milbury v. Nova Scotia (Attorney General), 2007 NSCA 52 (CanLII). 1. Admissibility of the Dull affidavit: [24] As noted above, the chambers judge recognized the problems with the affidavit and indicated that it was clearly inadmissible. However, he chose to rely on parts of it and accept into evidence the exhibits attached to the affidavit. The appellant submits that the chambers judge should not have relied on anything in the affidavit or accepted the exhibits attached to it as evidence because: (a) the Affidavit does not identify the source of the various pieces of information contained in each paragraph; (b) the Affidavit does not contain Mr. Dull’s statement that he swears to his belief in the information referred to in each paragraph; (c) the Affidavit does not contain the grounds for Mr. Dull’s belief in the information provided in each paragraph; (d) the Affidavit contains otherwise inadmissible evidence which was opinion evidence, hearsay, double and triple hearsay or evidence from unnamed sources. [25] agree that the affidavit is severely deficient and does not comply with the law in Nova Scotia respecting the form and contents of affidavits. See, for example: Waverley (Village) v. Nova Scotia Minister of Municipal Affairs), (1993) 1993 CanLII 3403 (NS SC), 123 N.S.R. (2d) 46 (S.C.); Fero Waste and Recycling Inc. v. MacNeill, 2002 NSCA 134 (CanLII); and Wall v. Horn Abbott Ltd., 1999 CanLII 7240 (NS CA), [1999] N.S.J. No. 124 (Q.L.) (NSCA). [26] However, in my view it is immaterial that the affidavit is deficient because all the evidence referred to by the chambers judge in the decision and required for determination of the issues was also contained in the other affidavits. The chambers judge noted in his review of the evidence that Mr. Wilson has provided different descriptions of the dog and at discovery had not adopted the statement purportedly given to Mr. Zaun. The statement of Dennis Wilson given to Mr. Zaun, to which the appellant takes the most objection, is also attached to the affidavit of Ms. Kelly filed on behalf of the appellant. The other statement of Mr. Wilson, given to the RCMP, is attached to the affidavit of Ms. Baldwin. There is no indication that the judge relied on the hearsay and “unnamed” sources referred to in Mr. Dull’s affidavit. It appears that he accepted the exhibits, the statements, the discovery evidence and perhaps the reports attached to it as indicative of the evidence the plaintiff will present at trial, without relying on the contents of the body of the affidavit. Although it would have been preferable for the chambers judge to signify which parts of the affidavit he relied on and which he found inadmissible, the failure to do so does not amount to the application of wrong principle of law or result in patent injustice. [27] The appellant says that the court cannot rely on the copy of the statement of Mr. Wilson given to Mr. Zaun that is attached to the Kelly affidavit because Mr. Wilson subsequently denied that he made that specific statement and the plaintiffs have not tendered an affidavit of Mr. Zaun to counter that evidence. Therefore, it is submitted, there is no dispute of fact or issue of credibility raised by Mr. Wilson’s statement to Mr. Zaun and, as result, no evidence identifying Mr. Hogeterp’s dog. disagree. The statement was tendered by the appellant to the chambers judge to add context to Mr. Wilson’s discovery evidence denying that he read the full statement. Once the statement is presented to the judge the other parties are able to refer to it to assist with their argument. The statement, on its face, purports to have been read and signed by Mr. Wilson. He did not deny that he gave statement to Mr. Zaun or that he signed the statement. [28] It should be noted that at this stage of the proceedings it was not necessary that the plaintiffs prove that Mr. Hogeterp’s dog contributed to the accident. The plaintiffs did not have to prove the truth of the statements and evidence attached to Mr. Dull’s affidavit. As will be seen in the discussion of the second issue, all that was required of the plaintiffs was to show that there is an issue of fact for trial, that is, they have some evidence to present at trial to support their contention that it was Mr. Hogeterp’s dog. They did not have to establish that their evidence is more credible or reliable than the defendant’s. They only had to show that the facts are contested, there is some evidence to support their version of events, and if their evidence is accepted by the trier of fact, their action has some merit. Even without Mr. Dull’s affidavit the nature and extent of the factual dispute was adequately presented through the other affidavits so that the chambers judge could determine the application for summary judgment. There was sufficient evidence properly before the court, to demonstrate that Mr. Wilson may have provided conflicting statements regarding the dog. His first and second version of the facts seem to support the plaintiffs’ claim that it was Mr. Hogeterp’s dog. Later, on discovery he denied the validity of the earlier statements. The chambers judge recognized the significance of the conflicting statements when he stated: 30 considerable amount of time has elapsed since the day of the accident involving Joellen Huntley and Andrew Larkin. The elapse of time has no doubt affected the witnesses recollection of events. Their recollection will have to be tested and the apparent changes explored fully at trial. Indeed their credibility might have to be challenged. Their individual testimony based on their powers of recollection and their credibility would be best left to the triers (or trier) of fact to consider and weigh after all relevant and admissible evidence is presented. 2. Summary judgment: [29] Mr. Hogeterp submits that the chambers judge erred in the application of the test for summary judgment. The application was brought pursuant to Rule 13.01(a): 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; [30] The applicable test is well established and has been most recently reiterated by this court in Milbury v. Nova Scotia (Attorney General), 2007 NSCA 52 (CanLII): Test for Summary Judgment: [17] In Orlandello v. AGNS, 2005 NSCA 98 (CanLII), Justice Fichaud explained the two stage test on summary judgment application: [12] Rule 13.01 permits defendant to apply for summary judgment on the ground that the claim raises no arguable issue. Rule 17.04(2)(a) allows third party to invoke Rule 13.01 to challenge plaintiffs claim. In Eikelenboom, after reviewing the authorities, this court stated the test: [25] Applying these authorities to the circumstances of this case, it is apparent that in order to show that summary judgment was available to it, [the defendant] had to demonstrate that there was no arguable issue of material fact requiring trial, whereupon [the plaintiffs] were then required to establish their claim as being one with real chance of success. See also: United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 (CanLII) at 9; Hercules Managements Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 at 15; Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 at 27. [18] As stated in Selig v. Cooks Oil Company Ltd., 2005 NSCA 36 (CanLII), there are two distinct parts of the test and they should be dealt with sequentially: ... First the applicant, must show that there is no genuine issue of fact to be determined at trial. If the applicant passes that hurdle, then the respondent must establish, on the facts that are not in dispute, that his claim has real chance of success. [19] If the applicant does not establish that there is no genuine issue of fact, it is not necessary to go to the second step. There is no onus on the responding party if the applicant does not succeed on the first prong of the test. If there are genuine issues of fact, the application should be dismissed. [emphasis added] [31] In this case it appears that the chambers judge found that Mr. Hogeterp met the first part of the test and then that the plaintiffs met the onus on them in the second part of the test. However, the judge seemed to blur the two parts. First he said (¶ 32) that he was “... satisfied that the applicant met the burden placed on him in step one of the two step test.” However, when he addresses the second part, (¶ 33) he said “... there is at least genuine issue that should be left to be determined at trial.” He goes on to refer to “factual issues” and “credibility”. Those are all matters at the heart of the first part of the test. The essence of the second part of the test for summary judgment is “real chance of success” on facts that are not in dispute. The judge did not refer at all to the real chance of success test. If the first hurdle is passed by the applicant, the facts are not in dispute on the second prong because the applicant has already satisfied the court that no facts are in issue, or in other words, there is no arguable issue of fact. Genuine issue of fact is the focus of the first part of the test but the chambers judge seemed to view it as the second question. [32] With respect, although agree that the application should have been dismissed, disagree with the conclusion that the appellant established that there is no genuine issue of fact. It was unnecessary to consider the second step. The onus did not shift to the plaintiffs to show that their claim had real chance of success. When questioned about this hypothesis during argument, appellant’s counsel indicated that since the respondents did not file notice of contention, this court could not examine whether Mr. Hogeterp had met the burden of showing that there was no genuine issue of fact. [33] This court has wide powers conferred by the Judicature Act and the Rules. Rule 62.23 states in part: (1) Without restricting the generality of the jurisdiction, powers and authority conferred on the court by the Judicature Act or any other enactment the court may: (a) amend, set aside or discharge any judgment appealed from except one made in the exercise of such discretion as belongs to judge; (b) draw inferences of fact and give any judgment, allow any amendment, or make any order which might have been made by the court appealed from or which the appeal may require; (c) make such order as to the costs of the trial or appeal as it deems fit; (d) direct new trial by jury or otherwise, and for that purpose order that the judgment appealed from be set aside; (e) make any order or give any judgment which the appeal may require. (2) The powers of the Court may be exercised in respect of all or any part of the judgment or proceedings appealed from, notwithstanding that the notice of appeal states that part only of the judgment is complained of, and may be exercised in favour of all or any of the parties or other persons interested in the appeal, although they have not complained of the judgment appealed from.[emphasis added] [34] The jurisdiction is broad enough to review the whole of the decision under appeal, and if warranted, dismiss the appeal for reasons different from those provided by the chambers judge. If the judge erred in the application of the test, we may apply the test afresh. We may then come to different conclusion or conclude that summary judgment should not be granted. [35] am of the view that Mr. Hogeterp’s application should have been dismissed because he did not establish that there was no genuine issue of fact for trial. If the chambers judge found there was no genuine issue, it was the result of reviewable legal error. [36] The genuine issue of fact in this case is whether it was Mr. Hogeterp’s dog on the road just before the accident. Mr. Hogeterp swears that it was not. It could not have been his dog Tasha because she was tied to tree in his yard, which he confirmed by looking out his window when he heard the crash. Also he will have evidence from Andrew Larkin that the dog he saw was black. If that were the only evidence, there may not be genuine issue of fact. [37] However, there was sufficient information before the chambers judge to indicate that there will be conflicting evidence at trial. The plaintiffs will first present all their evidence on the identity of the dog which may include: a. the evidence of Mr. Wilson. Whatever his version of events may be at the time of trial, he will be confronted with the two statements he gave, one to the RCMP, and one to Mr. Zaun. In the former, Mr. Wilson said the dog was probably brown and could have been the same dog he almost hit twice before in that area. In the latter he is purported to have said it was Mr. Hogeterp’s dog; b. the evidence of Mr. Zaun who took the statement from Mr. Wilson and the photographs of the unrestrained dog of varying colour on the Hogeterp farm; c. an expert report about the characteristics of the Redbone Coonhound; d. evidence that it was raining on the day of the accident, from which there may be inferences drawn about the lighting and the effect of rain and darkness on the apparent colour of the dog; e. circumstantial evidence from people such as Mr. Parker and Mr. Wilson that they have seen brown dog running loose near the road at the site of the accident on other occasions and that Mr. Hogeterp owns land on both sides of the highway at that site. [38] In addition, the plaintiffs will have the opportunity to test the credibility of Mr. Hogeterp and the reliability of Andrew Larkin’s memory. As well, given that Andrew Larkin has said that he only caught glimpse of the dog, the quality of his observation will be questioned. The trier of fact will be asked to draw inferences from all the evidence. [39] summary judgment application is not the time for evaluating credibility, weighing evidence and drawing inferences. In Dawson v. Rexcraft Storage, 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.) Borins, J.A. explained: 19 In Aguonie, this court discussed the role of motions judge in determining whether genuine issue exists with respect to material fact. It is helpful to repeat what the court said at pp. 235‑36: In ruling on motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether genuine issue exists as to material facts requiring trial. Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact. 28 ... However, at the end of the day, it is clear that the courts accord significant deference to the trial process as the final arbiter of the dispute which has brought the parties to litigation. If there is genuine issue with respect to material facts then, no matter how weak, or how strong, may appear the claim, or the defence, which has been attacked by the moving party, the case must be sent to trial. It is not for the motions judge to resolve the issue. [emphasis added] See also: Campbell v. Lienaux (1998),1998 CanLII 1828 (NS CA), 167 N.S.R. (2d) 196 at 15-16 and Oceanus Marine Inc. v. Saunders (1996),1996 CanLII 5309 (NS CA), 153 N.S.R. (2d) 267 at 19 -20. [40] In this case the defendant Mr. Hogeterp did not meet the first part of the summary judgment test. He did not establish that there was no genuine issue of fact for trial, and the application ought therefore to have been dismissed on that basis. The order of the chambers judge should be confirmed, although for different reasons. [41] I would grant leave to appeal but dismiss the appeal. [42] Counsel for the respondents argued that if the appeal were dismissed, they should receive double the normal tariff for interlocutory appeals because they made an offer to settle the appeal. The offer, dated May 9, 2007, was that if Mr. Hogeterp agreed to dismissal of the appeal, the respondents would waive the costs ordered by the chambers judge and any costs associated with the appeal. [43] Rule 41A.09(1) provides costs consequences for the failure to accept an offer to settle that is more favourable than that ordered after trial. The respondents have not pointed to any case determining that Rule 41A.09(1) is applicable to offers to settle appeals. Assuming without deciding that it is applicable, would decline to order double party and party costs from the date of the offer in this case. As noted above, the appellant raised arguable issues and it is apparent that the chambers judge did not apply the test for summary judgment correctly. Furthermore, the offer to settle, involving waiver of costs of the application and those that might be ordered after appeal, was for an insignificant amount in comparison to the amount of money ultimately at issue here. [44] would order that the appellant pay costs to the Larkin respondents in the amount of $1,500 plus disbursements and also to the Huntley respondents in the amount of $1,500 plus disbursements. Roscoe, J.A. Concurred in: Saunders, J.A. Oland, J.A.
A single vehicle accident occurred when the driver swerved to avoid hitting a dog that ran onto the highway. An action was brought against both the driver and the farmer who owned the land on both sides of the highway on the basis that the farmer owned the dog in question and was negligent in failing to keep it off the highway. The farmer contended that although he owned a dog, it was tied to a tree at the time and his was not the dog that had run onto the highway. When his application for summary judgment was dismissed, the farmer appealed. Appeal dismissed. At this stage of the proceedings, it was not necessary for the plaintiffs to prove that the defendant's dog contributed to the accident or the truth of the statements and evidence attached to the affidavit. It was only necessary to show that the facts were contested, there was some evidence to support their version of events and, if their evidence was accepted by the trier of fact, their action had some merit. Although the judge appeared to blur the two parts of the test on a summary judgment application, the Court found that the farmer failed to meet the first part of the test; namely, that there was no genuine issue of fact for trial as there was conflicting evidence as to the identity of the dog involved.