Peter Regan

In a Simplified Procedure motor vehicle action, the defendants sought direction at a case conference permitting them to summons an unresponsive non-party witness to give viva voce evidence at trial if an affidavit could not be obtained.

The court held that an associate judge's jurisdiction is strictly statutory and that rule 76 repeatedly requires evidence in chief to proceed by affidavit in a summary trial.

The general power in subrule 76.10(5)(e) to make orders respecting the conduct of the proceeding could not be used to override that structure.

The request was therefore refused, although the court observed that a judge, exercising inherent jurisdiction, might be able to entertain the same relief if brought promptly before trial.

The plaintiff sought costs of a motion for directions regarding the binding nature of an agreed summary of facts from a criminal proceeding.

The defendants sought their costs of the motion, and one defendant sought costs thrown away due to the adjournment of the trial.

The court reserved the costs of the motion to the trial judge, finding that the trial judge would be best placed to assess costs in the context of the final disposition.

The court dismissed the request for costs thrown away, as the adjournment was not the fault of any particular party.