When a motion judge exercises her new fact-finding powers under Rule 20.04(2.04) and determines whether there is a genuine issue requiring trial, is it deference?
Prince Edward Island, Canada
The following excerpt is from CMT et al. v Government of PEI et al., 2020 PECA 12 (CanLII):
In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact‑finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at para. 36. · Plaintiffs’ claim suited to Rule 20 motion
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