EKB obtains summary trial dismissal in the face of clear conflicts on the affidavit evidence
EKB lawyers David Turner and Laura Morrison recently obtained a summary trial win despite clear and undeniable conflicts on the evidence on the key issue. In Colter Developments Ltd. v. Squamish JV Ltd., 2016 BCSC 354, our client, Mike Babcock, was sued personally in a claim by a number of construction companies with respect to the failed construction of a Holiday Inn located in Squamish, British Columbia.
The claim alleged that at a Detroit Red Wings practice in 2009, principals of the plaintiff companies met with Mr. Babcock to discuss the difficulties they were experiencing with the construction. The plaintiffs claimed essentially that at the hockey practice Mr. Babcock promised personally that they would be paid. Mr. Babcock denied making any such promise to the plaintiffs.
The plaintiffs argued the case was not suitable for summary trial because of the conflicting affidavits. After reviewing the applicable law, the court disagreed, finding that “there are conflicting affidavits but other evidence makes it possible to find the facts necessary for judgment.”
The Court found it relevant that Mr. Babcock was only an investor in the project, and not a manager or businessman:
 Michael Babcock is an investor in the hotel project …Until late 2009, he had no active involvement in VW Hotels. He is a professional hockey coach. At the time of these events he coached the Detroit Red Wings of the National Hockey League as well as Canada’s national hockey team for the 2010 Winter Olympics.
The court canvassed the law of negligent misrepresentation and certainty of terms in contract and also referenced the many discrepancies between the plaintiffs’ version of events and the documentary evidence. The court found that the allegations of negligent misrepresentation could not succeed on the law. The court found that many of the allegations in the law of contract did not have the necessary certainty of terms, and those few allegations that did were “inherently unlikely” on the facts.
The court dismissed the case against Mr. Babcock with costs.
The case is noteworthy because it signals that courts are willing to dismiss actions at summary trial, even in cases where the traditional wisdom is that a full trial would be required to assess credibility. It was an aggressive tactic, but the summary trial success resulted in significant savings in fees, time and inconvenience for our busy client. The full decision can be found here. A Globe and Mail article on the decision can be found here.