What is the test for determining whether there is a genuine issue for trial?
Alberta, Canada
The following excerpt is from Aeroflex Spa Ltd. v. Shemina Financial Corp., 2002 ABQB 1079 (CanLII):
The issue before me is whether there is a genuine issue for trial: Rule 159(3). I need not refer to any case law. Neither party has satisfied me, to the degree necessary, that there is not a genuine issue for trial. The affidavits conflict on the critical issue so it would not be proper in this case to decide based on that conflict: Lyons Brimacombe Albert & Cook v. Kemerdis, (1991) 110 A.R. 6 (M). It would not be proper to draw conclusions from the evidence without hearing the witnesses, and with fuller argument by counsel.
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