Is it proper for a court on a Rule 76.07 motion for judgment to determine a genuine issue including making findings of credibility?
Ontario, Canada
The following excerpt is from Sajdik v. Simcoe (County), 2004 CanLII 24001 (ON SC):
It is proper in an appropriate case for a court on a Rule 76.07 motion for judgment to determine a genuine issue including making findings of credibility if the motions judge is able to do so without cross-examination and it would not be unjust to decide the issue on the motion. The County is not permitted to rest on mere allegations or denials in its pleadings, but must set out specific facts to prove its defence. I agree with Spence J., in Branco v. Sunnybrook (2003) O.J. No. 3287 that for purposes of Rule 76, it is not sufficient for a defendant to show that there is a genuine issue, but rather to show the judgment ought not be granted. Where a genuine issue is shown, the role of the motions court is not automatically terminated, but the judge instead must determine whether that issue is such that the matter can properly be decided without a trial. DETERMINATION
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