Since the introduction of the former Rule 18A in 1983, summary trials have become an ever more important element of civil litigation in British Columbia. The broad scope for summary trials under Rule 9-7 was recently confirmed by the British Columbia Court of Appeal in Brissette v. Cactus Club Cabaret Ltd., 2017 BCCA 200, where the Court, referring to the history of summary trials in British Columbia and the Supreme Court of Canada's recent judgment in Hryniak v. Mauldin, 2014 SCC 7, upheld a ruling that a defamation action was suitable for determination by summary trial, notwithstanding conflicting evidence and issues of credibility.
Mr. Brissette attended the defendant Cactus Club Cabaret Ltd. ("Cactus Club") on June 24, 2013, from 5:30p.m. to 10:30p.m, with several co-workers and business associates.
Shortly before 10p.m., Katrina Coley, another defendant, was taking drink orders from Brissette's group when, Coley asserted, Brissette slid his hand down her back and placed his hand on her buttocks. Coley also alleged that Brissette had called her "Kitty-Kat" through the evening. Brissette denied the first allegation altogether and substantially denied the second allegation.
After Coley told her supervisors Brissette had acted inappropriately toward her, she was directed by the night manager for Cactus Club, Regina Novikov, another defendant, to inform Brissette's group that no further drink orders would be taken from them and ask them to end their meeting. Brissette objected to being asked to leave and asked to speak to Novikov. Novikov came to speak with Brissette and the other patrons. The evidence regarding what occurred was in dispute, but the evidence indicated Brissette admitted he told Novikov "this is bullshit," Novikov told the group they had to leave the restaurant because Brissette had touched Coley inappropriately, and Brissette's group left shortly thereafter.
Brissette brought a defamation action against the defendants alleging Novikov defamed him by telling his companions he had inappropriately touched Coley. The defendants argued Novikov's statements were true or alternatively made on an occasion of qualified privilege. (See: the "Streisand effect.")
At a summary trial, the chambers judge found the matter was suitable for determination by summary trial and that both defences were made out.
On appeal, Brissette argued the matter was not suitable for summary trial. Mr. Justice Tysoe rejected this argument while acknowledging that:
Two prerequisites to the use of the summary trial procedure were that the court was able to find the facts necessary to decide the issues of fact or law and that the court was of the opinion that it would not be unjust to decide the issues. (see: para. 19)
On appeal, the Court agreed the matter was suitable for determination by summary trial notwithstanding conflicts in the evidence. It has been clear since the landmark decision of the Court of Appeal in Inspiration Management Ltd. v. McDermid St. Lawrence Limited (1989), 36 B.C.L.R. (2d) (C.A.), that matters could be suitable for determination by summary trial even if there were conflicting affidavits, so long as there was other admissible evidence that could assist the judge in resolving the conflicts.
Mr. Justice Tysoe held summary trial judges must "not be timid in considering its suitability to decide the action or issues within the action" (see: para. 22). Two recent developments support this proposition. The first is the explicit invocation of proportionality in Rule 1-3(2) of the Supreme Court Civil Rules. The second is the Supreme Court of Canada's recent decision in Hryniak, in which the Supreme Court called for a shift in culture that would ensure a balance between accessibility and the truth-seeking function. This shift in culture began in British Columbia with Rule 18A and must continue with an increased focus on proportionality (see: para. 25).
Of course, not all matters are suitable for determination by summary trial. Two prerequisites must be met: the court must be able to find the facts necessary to decide the issues of fact or law and the summary trial judge must be of the opinion that it would not be unjust to decide the issues. Proportionality is a relevant consideration in determining whether these prerequisites are met (see: para. 26). Although a summary trial judge should not decide a contested issue solely on the basis of preferring one affidavit over another, other evidence may be used to provide a basis for preferring one affidavit over another (see: para. 27).
Mr. Justice Tysoe limited his analysis to the defence of qualified privilege. There were some conflicts in the evidence on the facts relevant to this defence; however, these conflicts did not preclude the matter from being suitable for determination by summary trial. In particular, on the issue of whether anyone at the table had asked Novikov why they were being asked to leave, the evidence of the employees of the Cactus Club was preferred to that of Jimmy
Byrd, a co-worker of Brissette, as Byrd's affidavit was found to be "more sanitized" than even Brissette's evidence (see: para. 34). In any event, even if the evidence of Brissette and Byrd was accepted, Novikov still made the statement on an occasion of qualified privilege, as there was a duty to explain why the party was being asked to move. It was open to the summary trial judge to find there was no evidence to establish malice on the part of Novikov that would defeat the defence of qualified privilege.
Brissette affirms the direction from the Court of Appeal in Inspiration Management regarding the broad availability of summary trials as a means of resolving civil disputes in British Columbia, even where there are conflicts in the evidence, so long as there is some other evidence that can assist in resolving the conflicts and it is otherwise appropriate to decide the matter summarily.