2 total
Request to dismiss human rights application denied because amended civil claim removed all human rights allegations.
The respondents requested the early dismissal of a human rights application under section 34(11) of the Human Rights Code, arguing that the applicant had commenced a civil action based on the same facts and seeking similar remedies.
The Tribunal found that while the original civil claim overlapped with the application, the applicant had amended the statement of claim to remove all allegations of human rights infringements and requests for human rights remedies.
Because the amended civil action only sought damages for a breach of the common law reasonable notice period, the Tribunal concluded that section 34(11) did not apply and denied the request to dismiss.
Appeal allowed as motions judge reversed onus of proof on summary judgment motion.
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.
