Court Declines to Grant Summary Judgment, But Orders “Summary Trial”

Andrew Ottaway, B.A. (Hons.), LL.B.Medical Malpractice, Negligence, Summary Judgment0 Comments

Kristensen v. Schisler is another decision on the heels of Hryniak v. Mauldin, the Supreme Court case promoting better access to justice through summary judgment.  This case was for professional negligence and battery.  The Plaintiff claimed against the Defendants, a dentist and an oral surgeon, for removing his tooth without consent.

The Judge considered the new test set out by the Supreme Court in Hryniak v. Mauldin, stating that “The overarching question to be answered is ‘whether summary judgment will provide a fair and just adjudication’.”  The Judge concluded that he could not grant summary judgment.  He stated that more evidence was necessary to “do justice between the parties” because: 1) the case turned on credibility, the Plaintiff’s in particular; the Plaintiff denied consenting to the tooth removal, even though the Defendants’ records suggested otherwise.  If the Plaintiff were to be found highly credible (presumably after in-court cross-examination), his evidence might “trump” the Defendants’ evidence; 2) the Defendants required better evidence on a key issue: whether or not the Plaintiff had attended at a particular appointment; and 3) there was no evidence regarding what the damages might be.

Although he did not grant summary judgment, the Judge concluded that the case did not require a full Trial, and used the new summary judgment tools to tailor a “Summary Trial”.  The Judge estimated that the potential damages were between $5,000 and $50,000, and decided to treat the file as it if were within the “Simplified Rules” (a process designed to streamline litigations with a value under $100,000), which provide for a “Summary Trial”.  He then limited the issues for the Trial to determining: 1) the events of three specific appointments; 2) the reliability of the Defendants’ records; and 3) the damages.  The Judge also directed which evidence would be used at the Trial, and set strict time limits for cross-examinations and for oral argument.  The Judge indicated that he would hear the Summary Trial himself, consistent with the Supreme Court’s decision in Hryniak v. Mauldin.


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About the Author
Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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