(1)After the defendant has served a Statement of Defence or served a Notice of Motion, a plaintiff may move with a supporting affidavit or other evidence for summary judgment on all or part of the claim in the Statement of Claim.

(2)The plaintiff may move, without notice, for leave to serve a Notice of Motion for summary judgment together with the Statement of Claim, and leave may be given if urgency is shown, subject to such directions as are just.

(3)After the defendant has served a Statement of Defence, the defendant may move with supporting affidavit or other evidence for summary judgment dismissing all or part of the claim in the Statement of Claim.

(1)An affidavit for use on motion for summary judgment may be made on information and belief as provided in Rule 39.01(4), but, on the hearing of the motion, the court may draw an adverse inference from the failure of a party to provide the evidence of a person having personal knowledge of contested facts.

(2)In response to an affidavit or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but shall set out, in affidavit or other evidence, specific facts showing there is a genuine issue requiring a trial.

(3)With leave of the court, an affidavit for use on motion for summary judgment may contain opinion evidence if the deponent would be allowed to give that evidence while testifying in court.

(1)On a motion for summary judgment, each party shall serve on every other party to the motion a brief consisting of a concise statement of all relevant facts, the argument, law, and authorities relied on by the party.

(2)The moving party’s brief shall be served and filed, with proof of service, in the office of the clerk of the judicial district where the motion is to be heard at least seven days before the hearing.

(3)The responding party’s brief shall be served and filed, with proof of service, in the office of the clerk of the judicial district where the motion is to be heard at least four days before the hearing.

(1)The court shall grant summary judgment if

(2)In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose, unless it is in the interests of justice for those powers to be exercised only at a trial:

(3)For the purposes of exercising the powers set out in this subrule, a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(4)If the court is satisfied the only genuine issue is the amount to which the moving party is entitled, the court may direct a trial of that issue.

(5)If the court is satisfied the only genuine issue is a question of law, the court may determine that question and grant judgment accordingly.

(6)If the only claim is for an accounting and the defendant fails to satisfy the court there is some preliminary issue to be tried, the court may grant judgment on the claim and give directions for an accounting.

(1)If summary judgment is refused, or is granted in part only, and a trial is necessary, the court may order that the action be set down for trial in the normal course or within a specified time and may specify the material facts which are not in dispute and may define the remaining issues where they are not sufficiently defined in the pleadings.

(2)If it is ordered that an action proceed to trial in whole or in part, the court may impose the terms and conditions as are just, including directions

(3)If a party fails to comply with an order for payment into court or for security for costs, the opposite party may apply to the court for an order dismissing the action or striking out the Statement of Defence, as the case may be, with or without costs as may be just. If, on such a motion, the Statement of Defence is struck out, the defendant shall be deemed to be noted in default, and the plaintiff may move for judgment in respect of any claim for relief for which the plaintiff is not required by Rule 21.05 to set the action down for trial.

(4)On the terms as may be just, the court may order that the enforcement of a summary judgment be stayed pending the determination of a claim in the statement of claim, counterclaim, cross-claim or third-party claim.

(1)On a motion for summary judgment, if the moving party obtains no relief and the action as originally constituted is allowed to proceed to trial without the imposition of terms or conditions, the court shall fix the costs of the opposite party and order the moving party to pay them without delay unless the court is satisfied that the motion, although unsuccessful, was nevertheless justified.

(2)If it appears to the court that an affidavit filed on a motion under this rule was filed in bad faith or solely for the purpose of delay, the court may fix the costs of the opposite party and order the party filing the affidavit to pay those costs without delay.