Date:20000609
Docket:A-414-97
CORAM: LINDEN, J.A.
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
MARY WALL
Appellant
(Plaintiff)
- and -
VAL BRUNELL and ORTHO-McNEIL INC.
Respondents
(Defendants)
Heard at Toronto, Ontario, Tuesday, June 6, 2000
Judgment Delivered at Toronto, Ontario
on Friday, June 9, 2000
| REASONS FOR JUDGMENT BY: MALONE, J.A. |
| IN AGREEMENT: LINDEN, J.A. |
| IN AGREEMENT: ROTHSTEIN, J.A. |
Date: 20000609
Docket: A-414-97
CORAM: LINDEN, J.A.
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
MARY WALL
Appellant
(Plaintiff)
- and -
VAL BRUNELL and ORTHO-McNEIL INC.
Respondents
(Defendants)
REASONS FOR JUDGMENT
MALONE J.A.
| _. This is an appeal from the Order of the Honourable Mr. Justice Richard of the Federal Court Trial Division (as he then was), dated May 13, 1997 which granted the Defendants" motion for summary judgment and thereby dismissed the Plaintiff"s action. |
| _. Pursuant to Rule 432.1(2) of the Federal Court Rules, a defendant may make a motion for summary judgment based upon affidavit material or other evidence filed in support of the motion dismissing all or part of the claim of the plaintiff. The purpose of summary judgment provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried. |
| _. I am of the view that the learned Motions Judge correctly held that a Plaintiff on a motion for summary judgment may not rest on her pleadings, but must set out in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. |
| _. The Motions Judge must be able to assess the nature and quality of the evidence supporting "a genuine issue for trial". Where, as here, the Plaintiff fails to file an affidavit in response to a motion for summary judgment, the Court is entitled to infer that she is unable to attest to such facts as are required to make out her claim. |
| _. With the consent of counsel for the Respondents, the Appellant exhibited in this Court two certificates of copyright registered March 19, 1996 entitled "Condonnette" and "Condonnette Clinical Trial Projects". However, the three affidavits filed before the Motions Judge, on which no cross-examination had been conducted, remain unrefuted. |
| _. I find no error of law on the part of the learned Trial Judge in granting summary judgment as there is no genuine issue for trial. The appeal will be dismissed with one set of costs to the Respondents in both Divisions of this Court. |
"B. Malone"
J.A.
"I agree" Linden J.A.
"I agree" Rothstein J.A.
| _. FEDERAL COURT OF CANADA |
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MARY WALL |
- and -
| VAL BRUNELL and ORTHO-McNEIL INC. |
DATE OF HEARING: TUESDAY, JUNE 6, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: MALONE J.A. |
| IN AGREEMENT: LINDEN J.A. |
| IN AGREEMENT: ROTHSTEIN J.A. |
| DATED: FRIDAY, JUNE 9, 2000 |
APPEARANCES: Ms. M. Wall
| For the Appellant (Plaintiff), on her own behalf |
Mr. G. Daniel
| For the Respondents (Defendants) |
| SOLICITORS OF RECORD: Mary Wall |
1172 Bay Street
Suite 264
Toronto, Ontario
M5S 2B4
| For the Appellant (Plaintiff), on her own behalf |
| Blake, Cassels & Graydon LLP |
Barristers & Solicitors
Commerce Court West
2800-199 Bay St.
P.O. Box 25
Stn. Commerce Court
Toronto, Ontario
M5L 1A9
| For the Respondents (Defendants) |
FEDERAL COURT OF APPEAL
Date: 20000609
Docket: A-414-97
BETWEEN:
Appellant
(Plaintiff)
- and -
VAL BRUNELL and ORTHO-McNEIL INC.
Respondents
(Defendants)
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