Summary trial is as stated: a trial conducted in a summary manner.

At its core, this means assessing a dispute by way of affidavit or examination for discovery transcript as opposed to viva voce testimony in Court, subject to cross-examination etc.

One enterprising litigant challenged the summary judgment process in Alberta, in response to CIBC suing him for what he owed on his credit card.

George Kalin "contended that ... the Consolidated Rules, which provides for summary judgment, offends the presumption of innocence enshrined in Article 11 of the Canadian Charter of Rights and Freedoms. His complaint is that the judge heard no testimony, only saw affidavits."

His application was rejected, the Alberta Court of Appeal stating that: "Fundamental justice permits proof by affidavit in appropriate circumstances, and (the summary judgment rules) simply spells out, fairly, what is an appropriate circumstance" (Kalin v CIBC, 141 AR 286, 1993).

But, as Justice Fraser of the BC Supreme Court said in Pierre v Lil'Wat Nation, 61 BCLR (3d) 381, 1999:

"Baron Bowen once sardonically remarked, 'Truth will out, even in an affidavit', reflecting the universal understanding of those with courtroom experience that the affidavit is an effete vehicle, when compared with oral testimony in court, for the proper determination of factual disputes."

Summary trial must be distinguished from summary judgment, the latter being described in a British Columbia Court of Appeal decision Golden Gate Seafood v. Osborn and Lange Inc., 1 BCLR 2d 145 (1986) as follows:

"The ground of the application must be that there is no defence to the whole or a part of the claim or, if the application is made by the defendant, no merit in the whole or a part of the claim. The judge before whom the application is brought is not to decide questions of fact or law as on a trial: his function is restricted to determining whether there is a bona fide triable issue. If there is, he must dismiss the application.  If there is not, he may give judgment."

In Inspiration Management v. McDermid St. Lawrence Ltd. 1989 36 BCLR 2d 202, the Court of Appeal added:

"The problem with (summary judgment) of course is that artful pleaders are usually able to set up an arguable claim or defence and any affidavit that raises any contested question of fact or law is enough to defeat a motion for judgment. Rule 18 (now Rule 9-7) was often ineffective in avoiding unjust delay or in avoiding unnecessary expense in the determination of many cases."

Hence, the impetus for summary trial procedures.

Generally speaking, summary trial procedures are only available in superior level courts such as in the Supreme Court of British Columbia (but not in the Provincial Court of BC, where small claims rules have a firm hold).

As with all things in the justice system, proceed with caution. With summary trial, the best advice can sometimes  "take care of what you ask for as you might get it" as a judge faced with a summary trial application can render a final judgment, which leaves the loser with only an appeal, and the faint hope that carries.

Most judicial decisions end up, eventually, gathering dust in the deep recesses of the law library. Even a decision that issues a novel or well articulated point of law usually succumbs, with the passage of time, to that tomb.

Not so with the BC Court of Appeal decision of March 30, 1989, aka the Inspiration Management decision, which continues to clearly state the law in regards to summary trial in the Province of British Columbia, a good testimony of then Chief Justice McEachern's ability to write to the masses, in spite of the complexity of the subject matter.

To properly understand the decision, readers need to know that the rule number for this topic is "Rule 9-7" (previously Rule 18A), and so BC lawyers and judges often refer to it as, for example, "a Rule 9-7 application".

From Inspiration Management (extract only):

"The test for Rule 18A (now Rule 9-7), in my view, is the same as on a trial. Upon the facts being found the chamber judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to law unless he has the opinion that it will be unjust to give such judgment.

"In deciding whether the case is an appropriate one for judgment under Rule (9-7) the chambers judge will always give full consideration to all of the evidence which counsel place before him but he will also consider whether the evidence is sufficient for adjudication. For example, the absence of an affidavit from a principal player in the piece, unless its absence is adequately explained, may cause the judge to conclude either that he cannot find the facts necessary to decide the issues, or that it would be unjust to do, so. But even then, as the process is adversarial, the judge may be able fairly and justly to find the facts necessary to decide the issue.

"Many complex cases properly prepared and argued can be resolved summarily without compromising justice in any way.

"In my judgment it must be accepted that while every effort must be made to ensure a just result, the volumes of litigation presently before our courts, the urgency of some cases, and the cost of litigation do not always permit the luxury of a full trial with all traditional safeguards in every case particularly if a just result can be achieved by a less expensive and more expeditious procedure.

"I agree with Hinkson J.A. when he said in United Services Fund v. Ward and Carter: 'It seems to me that that was the intention in R. 18A, that it not be a full-blown trial with all the rights and safeguards that accompany such a trial, but indeed it involved short-cutting some of the normal processes that are involved in a trial and expedited the administration of justice.'

In fact R. 18A substitutes other safeguards which are sufficient to ensure the proper attainment of justice. First, 14 days notice of the application must be given. Secondly, the chambers judge cannot give judgment unless he can find the facts necessary to decide issues of fact or law. Thirdly, the chambers judge, even if he can decide the necessary factual and legal issues, may nevertheless decline to give judgment if he thinks it would be unjust to do so.

"The procedure prescribed by R. 18A may not furnish perfect justice in every case, but that elusive and unattainable goal cannot always be assured even after a conventional trial and I believe the safeguards furnished by the Rule and the common sense of the chambers judge are sufficient for the attainment of justice in any case likely to be found suitable for this procedure.

"Chambers judges should be careful but not timid in using R. 18A for the purpose for which it was intended.

"In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

"Some counsel believe the Rule 18A procedure should only be invoked when both parties agree to a summary trial. I do not agree, as it must be expected in an adversarial process that parties will often disagree on the appropriateness or otherwise of the summary trial procedure. There is no room in the proper construction of R. 18A for a respondent's veto.

"I have no doubt that Rule 18A is destined to play an increasingly important role in the efficient disposition of litigation, and experience has already shown that its use is not limited to simple or straightforward cases. Many complex cases properly prepared and argued can be resolved summarily without compromising justice in any way.

"But it is necessary to recognize that it is essential on all applications under R. 18A for counsel to bring an appropriate measure of professional skill to the preparation of both the substance and the form of their material. It is unfair to scoop-shovel volumes of disjointed affidavits and exhibits upon the chambers judge and expect him or her to make an informed judgment.... (M)any of these applications will continue to be heard on a chambers list or by a referral judge where there is little or no opportunity for judicial preparation. Thus it is incumbent upon counsel to ensure, as the old pleaders used to say, that there is a proper joinder of issues on all questions on fact and law, and the practice of serial affidavits ... should be avoided.

"It should not be good enough in such serious matters, ... to throw up volumes of ill-considered affidavits and exhibits which do not squarely raise or answer the real issues in the case. The preparation of affidavits for an application or defence under R. 18A is a serious matter which requires the careful professional attention of counsel."

Writing affidavits for a summary trial application is an art and a science and in all but the most simple cases, ought to be done by counsel.

Keep your affidavit(s) brief and simple, and in narrative form. If the judge gets a sniff from the mere form of the affidavit that the facts are complex, you may well face a decision to decline summary trial and a referral to the full trial list.

This is a trial: nothing more but nothing less. Any necessary documents must be exhibited to affidavits and business records have their own peculiarities. Nor will hearsay be allowed.