Inventory of Reforms

Rule 13 - Summary Judgment is one of the few Rules to retain the same Rule number, but has expanded to include determination of questions of law.

What we currently think of as summary judgment has become "summary judgment on evidence," dealt with in R.13.04. The "no arguable issue" test is now articulated as the "no genuine issue for trial" test, but the standard is the same.

Rule 13 also creates a new type of summary judgment called "summary judgment on pleadings" in R.13.03, for cases where the pleading discloses no cause of action or defence, or is otherwise "clearly unsustainable." This is analogous to the previous R.14.25 which dealt with striking pleadings.

Rule 13.01(2) specifies that pleadings which are frivolous or vexatious should be dealt with under Rule 88 - Abuse of Process. Rule 88.02(1)(e) permits the court to strike a pleading amounting to an abuse of process, along with a number of other possible remedies.

From time to time after dismissing an application for summary judgment under the previous R.13.02, the court would give directions to counsel for the conduct of the proceeding. Rule 13.07 now requires the court to do so, unless all parties waive the requirement. This change offers counsel a window of opportunity to streamline the case with the assistance of a judge who is already familiar with the key facts and issues. Rule 13.07 gives the court broad discretion to restrict discovery in view of disclosure already provided by affidavit or cross-examination, narrow the issues, deal with outstanding disclosure issues, permit the evidence called on the motion to stand at trial, or otherwise provide for a speedy trial.

Rule 13 is one of only a few new Rules intentionally drafted to incorporate jurisprudence from another jurisdiction. Counsel will find many parallels with Ontario's R.20 and much of the Ontario jurisprudence on summary judgment will be applicable to motions under R.13. Two key differences in the Ontario Rules that have not been incorporated in Nova Scotia are: (a) Ontario R.20.06, which provides for significant costs sanctions after a failed motion for summary judgment; and (b) Ontario R.76, which adopts a less onerous test for summary judgment in cases proceeding under simplified procedures.