The plaintiff, injured while delivering pizza when interacting with the defendants’ dog, sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a motion for summary judgment on liability and contributory negligence after the action had been set down for trial.
The court held that summary judgment is only available where there is no genuine issue requiring a trial with respect to a claim or defence and that the plaintiff’s request effectively sought to bifurcate liability and damages without the defendants’ consent under Rule 6.1.01.
The court found the proposed motion would not provide a proportionate, more expeditious, or less expensive means to resolve the dispute, particularly given that evidence regarding the incident would need to be revisited at trial on damages.
Leave was therefore refused and the motion dismissed.
Costs were awarded to the defendants on a partial indemnity basis.
