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Section 10:
Summary Disposal of Proceedings
Proposal 14
Proposal 14
The test for summarily disposing of proceedings or issues in proceedings should be changed
to the "real prospect of success" test, construed as establishing a lower threshold for
obtaining summary judgment, and applied in all procedural contexts where summary
disposal of the case may ensue. Cases or issues in cases, whether advanced by plaintiff or
defendant, which have no real prospect of success should not be allowed to proceed to trial
unless some overriding public interest requires that they do proceed.
This proposal raised for consultation the possible introduction of a "real prospect of
success" test as the sole basis for determining whether the whole or part of a claim or
defence ought to be disposed of summarily in all relevant procedural contexts.
It also canvassed the possible adoption of rules allowing the court to initiate summary
disposal proceedings and giving the court flexibility in admitting evidence, including
oral evidence, in summary disposal hearings.
Notes
For example, whether to set aside a default judgment, to give the plaintiff summary judgment or to
strike out a pleading.
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