Can a judge hear viva voce evidence and give summary judgment?
British Columbia, Canada
The following excerpt is from Pentecost v. Kowal, 1988 CanLII 2957 (BC CA):
The chambers judge referred to the case of Gray v. Graib, supra. In that case, the plaintiff had elected for a jury trial. The defendant brought a R. 18A application seeking summary judgment. Although counsel for the defendants conceded that the chambers judge could not make findings of fact on the material before her, counsel submitted that she should hear viva voce evidence and give summary judgment because in the circumstances it would be "more just" that the trial be by a judge sitting without a jury. The judge, stating that she could not make any findings of fact on the material before her, refused to exercise her discretion under R. 18A and refused, also, to hear any evidence because the plaintiff had elected for a trial by judge and jury. Accordingly, she dismissed the application. 2. Issue estoppel
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