Court of Appeal

CASE NO.                                     VOLUME                                            PAGE

Cite as: MacNeil v. Black, 1998 NSCA 48

BRENDA MACNEIL                                                                       CHARLES PETER BLACK

                                                                        - and -

(Appellant)                                                                                                                (Respondent)

C.A.  No. 141688                        Halifax, N.S.                                 FREEMAN, J.A.

                                                                                                                             (orally)

APPEAL HEARD:                                    February 13, 1998

JUDGMENT DELIVERED:                   February 13, 1998

WRITTEN RELEASE OF ORAL:      March 6, 1998

SUBJECT:       Subject: Civil procedure; summary judgment, Civil Procedure Rule 13.01; interim payment, Rule 33.01(A)(1).

SUMMARY:     While the appellant’s motor vehicle was stopped in traffic in Sydney, N.S. it was                          struck from behind by the respondent defendant’s, causing her personal injuries.                     Alleging the respondent had no defence, the plaintiff applied for summary               judgment and interim payment.  The applications were dismissed.  The pleadings                         alleged the plaintiff had stopped her vehicle abruptly although her affidavit             evidence established she had been stopped for 45 seconds.  The Chambers judge                   found “references could be made to the pleadings only” and dismissed the                   applications.

ISSUE:                 Was there evidence in support of the motion for summary judgment?

RESULT:            The appeal was allowed.  It was an error in law to consider only the pleadings,                       and not affidavit or other evidence, in applications under Rule 13.01. The                    defendant was bound to demonstrate an issue against the claim which ought to                     be tried. Summary judgment was a condition precedent to interim payment under              Rule 33.01(A)(1) which was ordered at $20,000 without prejudice to the

plaintiff’s right to reapply.  Costs were fixed at $1,000 on the application and                               $1,000 on the appeal, plus disbursements, payable forthwith.