Tapley v Robertson, 2026 NBKB 89 (CanLII)
Reading Time: 4 minutes (approx.)
By: Fiona Costello (Articled Clerk)
This case arises from a collision that occurred on November 20, 2018, at the intersection of Brunswick and Westmorland streets in Fredericton. The Plaintiff, Tina Loretta Tapley, was driving easterly and entered the intersection to turn left onto Westmorland Street when her vehicle was struck by a southbound vehicle driven by the Defendant, Jason Robertson.
Ms. Tapley brought a motion for summary judgment under Rule 22 of the New Brunswick Rules of Court on the question of liability only. She asserted that she entered the intersection on a green light, while Mr. Robertson ran a red light. With the Defendant denying the allegation, the question of liability came down to which driver was facing the red signal.
Before assessing the evidence, Justice Morrison reviewed the governing principles for summary judgment under Rule 22. The Court explained that summary adjudication is intended to provide an alternative to conventional trials where the dispute can be fairly and justly decided on the existing record. The Court further emphasized that the only question on a motion for summary judgment is whether there is a genuine issue requiring a trial. The moving party bears the burden of establishing, on a balance of probabilities, that no such issue exists.
Justice Morrison explained that in determining whether there is a genuine issue requiring a trial, the Court first considers whether the dispute can be fairly and justly adjudicated on the filed evidence alone. If so, there is no genuine issue requiring a trial and summary judgment must be granted. Only where the assessment of the evidence suggests there may be a genuine issue requiring a trial does the Court proceed to the second step, where it considers whether a trial can nevertheless be avoided through the use of the enhanced fact-finding powers in Rules 22.04(2) and (3), often referred to as a “mini trial.” Those powers permit the Court to, among other things, weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence. In applying the Rule 22 framework to the evidence, the Court granted the Plaintiff’s motion and concluded that the evidence overwhelmingly established that the defendant ran the red light.
The Court then addressed several remaining procedural, evidentiary, and cost issues raised by the parties. First, the Court rejected the Defendant’s argument that the motion was premature because oral examinations for discovery had not been conducted. Justice Morrison noted that nothing in the Rules of Court suggests that an examination for discovery is a prerequisite for a motion for summary judgment. Citing Graysbrook Capital Ltd. v. Viva Development Inc., 2023 NBKB 193, he stated that it was not improper to seek to avoid the cost of examinations for discovery where there is no genuine issue requiring a trial. He added that if the defendant truly required a discovery before the motion hearing, counsel should have issued a Notice of Examination and moved to compel attendance or brought a motion seeking delay of the summary judgment hearing, neither of which was done.
Second, the Court granted the Plaintiff’s request to strike the defendant’s allegation that the Plaintiff was contributorily negligent for failing to wear a seatbelt. Justice Morrison emphasized that the parties, in a motion for summary judgment, have an obligation to “put [their] best foot forward—to play trump or risk losing.” Because the Plaintiff swore she was wearing her seatbelt and the Defendant failed to proffer any evidence to the contrary, the seatbelt argument could not stand.
Third, the Court denied the Plaintiff’s request to strike the Defendant’s allegations that the Plaintiff’s injuries were caused by a pre-existing condition. Justice Morrison clarified that because this was a motion for summary judgment on liability only, the question of which of the Plaintiff’s injuries are attributable to the defendant’s negligence must await a trial on damages.
Lastly, Justice Morrison rejected the Plaintiff’s bid for solicitor-client costs and held that the Defendant’s reliance on a “faint-hope” defense did not constitute the type of scandalous or outrageous conduct required by law. The Court did, however, fix an “enhanced award” of party-and-party costs of $8,000.00 plus disbursements. This award reflected the Court’s disapproval of the Defendant’s procedural conduct, which included failing to file a pre-hearing brief even after being prompted by the Clerk’s Office, maintaining a groundless defense (being the red-light issue), and making an arbitrary request for an adjournment on the morning of the hearing.
