Berry v. Pulley

Berry v. Pulley

The Court of Appeal held the motion judge impermissibly weighed evidence and drew factual inferences on the summary judgment motion, and absent personal‑knowledge evidence about designation practices the summary dismissal of the third party claim could not stand; the appeal was allowed and the dismissal set aside.

Citation
C42821
Parties
Plaintiffs: Patrick Berry; James Deluce; Jeffrey Karelsen; Robert James Simerson; Ernest Zurkan; Defendants (appellants): Chris Pulley; Tom Fraser; James Griffith; Peter Wallace; George Cockburn; Denis Belhumeur; Greg Mutchler; Gary Dean; Yves Filion; Howard Malone; Kevin Vaillant; Gordon Greig; Third Party (respondent): Kent Hardisty
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
29 September 2005
Procedural Posture
Civil / Appeal From Summary Judgment Motion (court of Appeal Review of Motion Judge's Dismissal of Third Party Claim)
Outcome
Appeal allowed; order dismissing third party claim set aside; summary judgment on those issues reversed.
Legal Topics
Summary Judgment, Indemnity Clause, Designation, Third Party Claim, Costs
Source Language
English
Civil Procedure Appeal Labour/employment Law Summary Judgment Indemnity Clause Designation Third Party Claim Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Patrick Berry; James Deluce; Jeffrey Karelsen; Robert James Simerson; Ernest Zurkan

Plaintiffs

Chris Pulley; Tom Fraser; James Griffith; Peter Wallace; George Cockburn; Denis Belhumeur; Greg Mutchler; Gary Dean; Yves Filion; Howard Malone; Kevin Vaillant; Gordon Greig

Defendants (appellants)

Kent Hardisty

Third Party (respondent)

Procedural Posture

Civil / Appeal From Summary Judgment Motion (court of Appeal Review of Motion Judge's Dismissal of Third Party Claim)

Legal Issues

  1. 1 Whether the respondent demonstrated there was no genuine issue for trial
  2. 2 Whether Captain Pulley was a designated person within paragraph 1 of the Indemnity
  3. 3 Whether paragraph 3 of the Indemnity applies only to claims by non-union members against union members

Ratio Decidendi

The Court of Appeal held the motion judge impermissibly weighed evidence and drew factual inferences on the summary judgment motion, and absent personal‑knowledge evidence about designation practices the summary dismissal of the third party claim could not stand; the appeal was allowed and the dismissal set aside.

Court Disposition

Appeal allowed; order dismissing third party claim set aside; summary judgment on those issues reversed.

Orders

  • Appeal allowed
  • Order of the motion judge dismissing the third party claim set aside