In what circumstances will an 18A application be successful if the chambers judge cannot find the facts necessary to resolve the issue?
British Columbia, Canada
The following excerpt is from Iacobucci v. Wic Radio Ltd., 1997 CanLII 2183 (BC SC):
It will also be impossible for any issue to be resolved on an 18A application where the chambers judge is unable to find the facts necessary to decide it. In Clark v. Newall Structures Ltd. (1990), 50 M.P.L.R. 141 (B.C.S.C.), Hutchison J. expressed the further caution at page 146 that a decision should not be made on the basis of conflicting affidavits in an 18A application which would not dispose of the whole case, but would leave the trial judge with one res judicata issue. In my view, caution is also particularly justified where issues are interwoven.
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