On an appeal from summary judgment dismissing claims against a corporate officer, the court held that a moving party cannot rely on its own examination for discovery on a summary judgment motion because rule 39.04(2) applies to all motions, including summary judgment motions, and a party's own discovery is not 'other evidence' under rule 20.01(3).
The court further held that the motions judge erred by treating the appellants' inability to extract admissions on discovery as evidentiary support for the respondent.
The court also rejected the proposition that a corporate officer is immune from personal tort liability merely because the impugned acts occurred within the scope of corporate duties.
The appeal was allowed, the summary judgment and related costs order were set aside, and the respondent was left free to bring a fresh motion on a proper evidentiary record.
