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CIVIL PROCEDURE - Summary judgments - Availability

Monday, December 09, 2019 @ 9:13 AM  


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Appeal by the plaintiff from refusal of summary judgment in a solicitor negligence action. The plaintiff sought civil damages for a sexual assault perpetrated in the early 1980s when she was 15 years of age. The defendant solicitor failed to commence the action within the applicable limitation period. The plaintiff sought damages for professional negligence. The defendant argued that any such damages were nominal at most, as plaintiff had consented to the sexual contact at issue. The plaintiff submitted that she could not have legally consented to the sexual activity based on the legal context of the early 1980s. The defendant brought a motion for summary judgment. At the end of the hearing, the plaintiff requested summary judgment in her favour. The motion judge refused summary judgment, finding that the issue of consent required a full trial. The plaintiff appealed.

HELD: Appeal dismissed. The order granted by the court dismissed the defendant's motion for summary judgment. The order made no mention of the plaintiff's request for summary judgment. Having successfully defended the defendant's motion and obtained an order dismissing it, the plaintiff had no basis to appeal from that result. Aside from the procedural barrier to the plaintiff's appeal, no reviewable error was established. The reasons for judgment demonstrated that the parties argued both sides of the same issue, the motion judge was alive to that issue, and the judge provided fulsome reasons in support of why a trial was required to resolve the issue.

Carrington v. MacLeod, [2019] P.E.I.J. No. 64, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I. and M.M. Murphy and J.K. Mitchell JJ.A., October 31, 2019. Digest No. TLD-December92019001