The Supreme Court of Nova
Scotia has granted AGF Trust
Company a request for summary
judgment under Rule 13.03 of the
Civil Procedure Rules.
In its annotated civil procedure
rules, the Nova Scotia Barristers’
Society notes that this is a new
type of summary judgment called
“summary judgment on plead-
ings” for cases that are “clearly
unsustainable.”
In Shane v. Allen [2010] N.S.J.
No. 717, the court assessed a lend-
er’s duty of care and found that it
does not include verifying infor-
mation on a loan application. The
court found that barring a special
relationship or exceptional cir-
cumstances, the relationship
between a bank and its customer
is that of a debtor and creditor and
no duty of care arises.
Butterworths®
Morden & Perell – The Law of Civil
Procedure in Ontario
The Honourable John W. Morden, B. A.,
LL.B., LL.D., D.S.L. & The Honourable
Mr. Justice Paul M. Perell, B. A., LL.B.,
LL.M, Ph.D.
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1,032 Pages
Hardcover | 2010
ISBN: 9780433453246
Introducing the Successor to The Law of Civil Procedure by
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The Osborne amendments to the Ontario Rules of Civil Procedure
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new rules.
Features and Benefits
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trial, summary judgments, determination of issues before trial,
scope and procedure governing discoveries, expert evidence,
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• Identification of the sources of civil procedure law, including
the Rules of Civil Procedure, inherent jurisdiction of the court,
case law, rules of professional conduct, and legal literature
• Expert commentary by a pair of authors who contributed
significantly to the development of the modern Rules of Civil
Procedure
• Applicability in other Canadian jurisdictions that base their
rules upon the Ontario rules
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How the witness rule lost its way
In Alice’s Adventures in Won-
derland, part of the way through
the trial the King of Hearts calls
for silence and reads out “Rule
Forty-Two: All persons more
than a mile high to leave the
Court.” When everyone looks to
Alice for compliance, she denies
that she is a mile high and chal-
lenges the King by saying
“besides, that’s not a regular
rule. You invented it just now.”
In reply the King tells Alice that
“it is the oldest rule in the book,”
to which she says “then it ought
to be Number One.”
Like the King’s Rule 42, the
rule in Browne v. Dunn (1893), 6
R. 67 (HL) appears to be one of
the oldest rules in the book, but
after reading some of the more
than 500 reported decisions in
which the rule has been cited in
Canada, to an outsider like Alice,
it would certainly appear to be
less than a “regular” rule. In fact,
unlike a regular rule that con-
notes an immutable principle or
regulation from which conduct
can be governed in a fixed and
certain manner, the rule in
Browne v. Dunn is neither abso-
lute nor predictable.
For those unfamiliar with
Browne v. Dunn, the rule originates from an 1893 decision of
the House of Lords in an action
brought against a solicitor for
defamation. It is from the oft-cited comments made by Lord
Herschell that the rule is
extracted: “My Lords, I have
always understood that if you
intend to impeach a witness you
are bound, whilst he is in the
box, to give him an opportunity
of making any explanation
which is open to him; and it
seems to me, that is not only a
rule of professional practice in
the conduct of a case, but is
essential to fair play and fair
dealing with witnesses.”
JOSEPH
GRIFFITHS
“
Unfortunately, as the
rule in Browne v. Dunn
has evolved, it has
become increasingly
disconnected from its
original purpose.
As originally conceived, the
rule imposed on the examiner a
duty to confront a witness with
the examiner’s theory of the case
on any factual matter that would
expressly undermine the witnesses’ credibility and, by inference, their capacity to tell the
truth. In that sense, the rule prohibits the assassination of a witnesses’ character through sleight
of hand or other gimmickry
employed by an examiner after
their cross has been completed.
Unfortunately, as the rule in
Browne v. Dunn has evolved, it
has become increasingly discon-
nected from its original pur-
pose. Where the original rule
was employed as a shield to pro-
tect a witness from unfairness,
the modern variant appears to
be more frequently used as a
sword against an examiner who
mistakenly believes that the
nature of adversarial process
makes it plain that there are
facts with which the parties
obviously disagree. That is, the
application of the rule now
seems to impose on the exam-
iner a duty to afford every wit-
ness with the opportunity to
explain away any factual incon-
sistency in their testimony,
without regard to whether the
witness has actually been sur-
prised or ambushed.
