Case information

Civil procedure — Summary judgments — Issue estoppel — Whether issue estoppel can arise on a question of fact or mixed fact and law upon an unsuccessful application for summary judgment — Whether, in the wake of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, courts have an obligation, where they have the required power, to disallow prospective proceedings within an action in which the adjudication of claims that are bound to fail will be sought.

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The respondent, Royal Bank of Canada, applied to the Supreme Court of British Columbia for summary judgment, under Rule 9 6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. As against Superior Flood and Fire Restoration Inc. (“Superior”), the respondent claimed that it entered into various credit facility agreements with Superior, under which Superior borrowed money and then failed to make payment as required. In addition, as against the applicant, Josip Tolzmann, the respondent claimed that the applicant entered into agreements guaranteeing the indebtedness of Superior and, despite demand for payment, had failed to make payment as required. The respondent claimed the amounts owing by Superior and the applicant, plus interest.

The Supreme Court of British Columbia granted summary judgment in favour of the respondent. The applicant appealed the order. The Court of Appeal for British Columbia allowed the appeal, ordered that the summary judgment as against the applicant be set aside, and substituted an order dismissing the application for summary judgment. The applicant suggested that the entire action against him should be dismissed. However, the Court of Appeal found that there was no basis for dismissing the whole claim; thus, the respondent was entitled to continue to pursue the action.