Can Rule 9-6 of the Rules of Civil Procedure allow summary dismissal of a claim where there are disputed facts in the pleadings?
British Columbia, Canada
The following excerpt is from Max Power Security Ltd. v Donley, 2021 BCSC 1479 (CanLII):
Rule 9-6 does allow for a summary determination of a claim where there are disputed facts in the pleadings because the defendant who seeks summary dismissal bears the evidentiary burden of showing there is no genuine issue of material facts requiring trial. The parties agree that this must be proven through evidence, and not merely allegations or pleadings: McLean v. Law Society of British Columbia, 2016 BCCA 368 at paras. 36–39.
Every material fact to support the cause of action must be plead, and if one or more of those facts are contested, the judge cannot weigh the evidence to determine the issue for the purpose of the application: Pitt v. Holt, 2007 BCSC 1555.
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