Summary Trials
The Newfoundland and Labrador Experience
Irene Muzychka, QC
Curtis, Dawe
Rule 17A
 “The object of rule 17A is to promote the general
objective of the Rules of Court of providing an
expeditious and inexpensive determination of
proceedings on their merits, by screening out claims
that cannot survive the "good hard look".”
 Green J., principle 1, Marco Ltd v Newfoundland
Processing Ltd, [1995] 130 Nfld & PEIR 317
 Rule 17A came into force January 1, 1995.
Rule 17A
 Rule 17A is similar to British Columbia's Rule 18A. Rule 17A is
also similar to Manitoba's Rule 20.
 All three rules provide that even if the court determines there is an
issue for trial it can, nevertheless, proceed to decide the issues on
the summary trial application if it is satisfied that the necessary
facts are before it, or if it is of the opinion that it would not be
unjust to do so.
 Rule 17A is more robust than the comparable Ontario Rule 20
where, at least in theory, if the court is satisfied there is a genuine
issue, the summary judgment application must be dismissed and
the matter set down for trial.
 Daley Brothers Ltd. v Taito Seiko Co., 2001 NFCA 29.
Cases citing Rule 17A
By Year
12
10
8
6
4
2
0
Number of
Cases
Marco Ltd v Newfoundland Processing
Ltd, [1995] 130 Nfld & PEIR 317.
 First judicial consideration of a Rule 17A application for
summary trial.
 Green J. (as he then was) looked at previous Ontario and
BC cases, as well as the language of Rule 17A, and offered
a list of 17 principles as a guideline for approaching
application for summary trials.
 Of 54 Newfoundland decisions that have cited Marco, 11
have reproduced the 17 principles in full.
 19 years later, Marco remains the leading case in
Newfoundland and Labrador for summary trial applications.
Cases Citing Rule 17A & Marco Ltd.
100
90
80
70
60
50
Cases Citing Rule 17A
& Marco Ltd.
40
30
20
10
0
Rule 17A
Marco Ltd
Rule 17A &
Marco Ltd
Common Trends in Summary Trial Subject Matter
12
10
8
6
4
2
Number of
Cases
0
*Of 89 cases citing rule 17A, 43 are represented here. The remaining 46 showed no common trend.
When Summary Trials are used:
 Slip & Fall
 Curtis v Smith's Home
Centre Ltd., 2010 NLCA 7.
 Motor Vehicle Accident
 Hannam v Farrell, 2007
NLTD 97.
 Construction Law
 Pomerleau Inc v
Newfoundland and Labrador
(Minister of the Department
of Transportation and
Works), 2014 NLTD(G) 19.
Best Foot Forward

“It would not be unjust to decide this
case on the materials provided. First
of all, each party is required to put
"his best foot forward" when
applying for summary trial, or
opposing the other party's
application… While there is no
pressing reason to resolve the
dispute between the parties, neither
is there justification for delaying it
unnecessarily or for incurring the
significant costs that would follow if I
dismissed the Higdons‘ application
and thrust these proceedings into
the regular trial queue. The
application is allowed and this
matter will proceed to a summary
trial as I directed above.”

Higdon v Penney, 2009 NLTD 193
Not Suitable For Summary Trial
 Evidentiary issues that
cannot be resolved
 Stewart v Martin, 2011
NLTD(G) 128.
 Genuine issue for trial
 P(C) v Oblates of Mary
Immaculate – St. Rosarie’s
Province, 2008 NLTD 6.
 “The inconsistencies and
discrepancies create
ambiguity and the
interpretation of the
contracts and the
relevance of any
inconsistencies cannot be
resolved at a summary
trial, given the conflicting
evidence and the lack of
evidence.”
 Philpott v Stevens, 2005 NLTD
50.
Evidence Issues Resolved
 “I am satisfied that the materials filed (when the conflicts I
have identified are probed in cross-examination) provide a
sufficient evidentiary base for resolving all issues between
the parties and will allow for an informed and reasoned
adjudication of the merits of this case. The presiding judge
on a summary trial may draw reasonable inferences from
proven facts and can also resolve conflicts in the evidence by
referring to other known facts.”
 Higdon v Penney, 2009 NLTD 193.
Considerations for Counsel
 How to reconcile issues with
evidence
 Consideration of costs
 Issues with Self-Represented
Litigants
 Is the case optimally suited
for summary trial?
Hryniak: Does it Change Anything?
 The Supreme Court of Canada’s recent Hryniak decision is
concerned primarily with the rule concerning summary
judgment, however, Karakatsanis J. makes reference to
summary trials being within judicial discretion and urges that
they should be used where appropriate:
“The motion judge should look to the summary trial as a
model, particularly where affidavits filed could serve as
the evidence of a witness, subject to time-limited
examinations and cross-examinations.”
Hryniak v Mauldin 2014 SCC 7, para 77.
Hryniak: Does it Change Anything?
 Due to the well established
jurisprudence regarding
summary trials, Hryniak is
unlikely to have any
substantial impact on the
summary trial process in
Newfoundland and Labrador.