What is the test for establishing that a party to a motion has not been successful in a trial?
Ontario, Canada
The following excerpt is from Wiltshire v. Wiltshire, 2003 CanLII 2275 (ON SC):
Erving Ungerman Limited v. Galanis, (1991) 1 C.P.C. p. 248 stands for the proposition that a moving party must satisfy the court that there is no issue of fact which requires a trial for its resolution keeping in mind that the court’s function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists. The moving party has not satisfied this onus.
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