Case information

Civil procedure — Summary judgment — Evidence on motion — Best foot forward — Contracts — Waiver — Motion judge granting summary judgment dismissing contractual claims — Appellate court overturning on basis of there being genuine issue for trial as to terms of contractual arrangement between parties — Whether parties to a summary judgment motion have an obligation to put their “best foot forward” by advancing their best evidence on the motion and whether motions judges are entitled to assume that the evidence before them on a summary judgment motion is all of the evidence that would be adduced at trial — Whether it is appropriate for an appellate court to overturn a summary judgment based on other potential evidence, which was not led by any party, which may or may not be relevant to a cause of action which no party pleaded.

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The respondent, Jack Ganz Consulting Ltd., claims damages against the applicant, formerly known as Cara Operations Limited, for breach of a three-year auto-renewal consulting contract, and alternatively, for lack of reasonable notice under the common law as a dependant contractor. Ganz provided IT services for Cara for eight years — the first three were governed by the consulting agreement originally signed by Ganz. As for the remaining years of service, the parties disagree as to the particulars of the arrangement between them. Ganz submits that the original agreement never expired and applies, whereas Cara says that the original agreement expired in 2009 following extensive negotiations between the parties. The motion judge found that Ganz waived its right to automatic renewal of the contract in 2008 and summarily disposed of its action in favour of Cara. The Court of Appeal intervened to allow the appeal, set aside the summary judgment order, and refer the matter for trial. Given the considerable uncertainty surrounding the contractual negotiations in the record, the court held that there was simply not enough evidence to dispose of the action in summary fashion.