The appellant appealed an order granting summary judgment dismissing its counterclaim.
The Court of Appeal allowed the appeal, finding that the motions judge erred by reversing the onus of proof on a motion for summary judgment and by failing to apply the 'plain and obvious' test when treating the motion as one brought under Rule 21.01(1).
The respondents had failed to file evidence addressing the appellant's allegations, and the counterclaim was not destined to fail.
