Century Services Inc. v. LeRoy

2015 BCCA 120 Century Services Inc. v. LeRoy

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Century Services Inc. v. LeRoy, 2015 BCCA 120 Date: 20150318 Docket: CA041835 Between: Century Services Inc. Appellant (Plaintiff) And Cynthia Rebecca Delores LeRoy Respondent (Defendant) Corrected Judgment: The front page of the Judgment was corrected on March 23, 2015 Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman On appeal from: An order of the Supreme Court of British Columbia, dated April 24, 2014 (Century Services Inc. v. LeRoy, 2014 BCSC 702, Duncan Registry S12043). Counsel for the Appellant: M. Buttery L. Williams Counsel for the Respondent: A. LaCroix J. LaCroix S. Leichter Place and Date of Hearing: Victoria, British Columbia October 20, 2014 Place and Date of Judgment: Vancouver, British Columbia March 18, 2015 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice Neilson The Honourable Mr. Justice Groberman Summary: The appeal is from an order: allowing an amended response to civil claim alleging fraudulent representation, to stand; refusing to dismiss the allegation of fraudulent misrepresentation under Rule 9-6 of the Supreme Court Civil Rules; and requiring production of documents relating to loans to third parties. Held: appeal allowed only in respect to discovery of documents. The judge did

not err in allowing the amendment, or in failing to dismiss the allegations. In particular Rule 9-6 was not an available route to the order sought because Rule 9-6 only provides for the entry of judgment on all or part of the claim. Striking this defence would not lead to judgment in respect of the claim, in whole or in part. The appeal in respect to the plea of fraudulent misrepresentation is not allowed. The order for discovery of documents, broad in scope, however, was made prematurely, before the parties had an opportunity to address discovery knowing the scope of the triable issues. The order in respect to discovery of documents is set aside. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] This appeal concerns the pleading of the defence of fraudulent misrepresentation. By the order appealed the judge: 1) allowed the respondent, Mrs. LeRoy, to withdraw an admission in her amended statement of defence that was inconsistent with fraudulent misrepresentation; 2) gave leave to advance allegations of fraudulent misrepresentation, that is, to plead fraudulent misrepresentation; 3) dismissed the application of the appellant, Century Services Inc., to strike or dismiss the allegations of fraudulent misrepresentation; 4) allowed Mrs. LeRoy's application for the production of documents; 5) gave Mrs. LeRoy leave to file an amended response to civil claim after the

production of the documents; and 6) ordered Mrs. LeRoy to provide further unspecified particulars of the allegations of fraudulent misrepresentation if available. [2] Century Services contends that the judge erred: 1. in her application of the test for summary judgment under Rule 9-6 of the Supreme Court Civil Rules, including in permitting the pleading of fraudulent misrepresentation to stand; and 2. in ordering the production of loan documents involving Century Services and unrelated third parties. Background [3] The action was commenced by Century Services as a foreclosure proceeding on a mortgage of Mrs. LeRoy's home given as security for a loan to the family business, Ted LeRoy Trucking Ltd. As a term of the loan agreement, the company agreed to pay reasonable out-of-pocket costs and expenses incurred by Century Services. In addition to the mortgage, Mrs. LeRoy also gave a limited guarantee. The company defaulted on the loan. Century Services then demanded payment under the guarantee and mortgage, and payment not being made, filed a statement of claim on April 6, 2010, under the former Rules of Court. [4] On April 7, 2010, Mrs. LeRoy filed a pro forma statement of defence denying all allegations, followed by an amended statement of defence on May 14, 2010, admitting to the making of the guarantee and the granting of the mortgage. In the amended statement of defence Mrs.

LeRoy alleged that Century Services was negligent and in breach of its statutory duty under the Personal Property Security Act, R.S.B.C. 1996, c. 359. [5] On December 17, 2012, Century Services filed a notice of civil claim under the new Supreme Court Civil Rules, seeking the identical relief as in its earlier statement of claim. This opened the door to Mrs. LeRoy to file a response to civil claim. She did so on February 8, 2012, but in two significant aspects it differed from her earlier pleading: it denied the validity of the guarantee, that is, it withdrew an admission; and it raised the new defence of fraudulent misrepresentation based upon information gained in examinations for discovery. The basis of this new plea is the allegation that rather than billing only for incurred out-of-pocket expenses, Century Services billed for other matters, including the time its salaried employees spent working on loan files. Mrs. LeRoy pleads that this pre-existing practice was contrary to the loan agreement, and establishes a fraudulent misrepresentation as to the basis of her liability under the guarantee. Century Services then filed a reply traversing the allegation of fraudulent misrepresentation. [6] After the pleadings appeared to be complete, Mrs. LeRoy applied for an order allowing her to withdraw the admission of a valid guarantee and to plead fraudulent misrepresentation, that

is, she applied to regularize the expansion of her pleading beyond that which had been contained in her amended statement of defence. She also sought the production of documents relating to the billing practices of Century Services in respect to other debtors. Century Services then applied to strike Mrs. LeRoy's pleading under Rule 9-5 and applied for judgment on the defence of fraudulent misrepresentation under Rule 9-6. Discussion [7] Rule 7-7(5) requires leave to withdraw an admission, as did the previous Rule 31(5) of the Rules of Court. Further, both the new Rules and former Rules allowed only one amendment to a pleading as of right. Notwithstanding the response to civil claim was a newly titled document, it was the third pleading by Mrs. LeRoy. In raising a new defence, it likely required leave as well. Not a great deal turns on this in the circumstances except to say that in addressing Century Services' appeal that speaks both to the pleading being insufficient and the evidence adduced being insufficient to warrant a trial of the issue of fraudulent misrepresentation, I have found it convenient to address the issues in two stages: first, the amendments to Mrs. LeRoy's pleading; and second, only if Mrs. LeRoy's application to withdraw the admission and to amend her pleading is successful, the application for summary judgment. I. Withdrawal of the Admission and the

Sufficiency of the Pleading [8] Century Services says the response to civil claim fails to plead all of the required elements of the defence of fraudulent misrepresentation, and thus her prepared amendment should not have been allowed to stand. Nor, it says, should the admission of a valid guarantee have been allowed to be withdrawn. [9] An application to amend a pleading is made under Rule 6-1. The application to withdraw an admission, while a species of pleadings amendment, is brought under Rule 7-7, the rule concerning all admissions. [10] The general approach to amendments is generous and non-technical, thereby to permit amendments as are necessary to determine the real question between the parties, considering always the interests of justice. In Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282, 71 B.C.A.C. 161, this court considered an application to add a new cause of action to claims after a contractual limitation period had expired, a situation with parallels to advancing a new defence. In describing the approach that should be taken to the question of adding this new field of enquiry to the litigation, Mr. Justice Finch, agreed with by all, said: [45] On principle, therefore, it appears to me that the discretion to permit amendments afforded by both Rule 24(1) and s. 4(4) of the Act was intended to be completely unfettered and

subject only to the general rule that all such discretion is to be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities. Delay, and the reasons for delay, are among the relevant considerations, and the judge should consider any explanation put forward to account for the delay. But no one factor should be accorded overriding importance, in the absence of a clear evidentiary basis for doing so. [67] In the exercise of a judge's discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation. Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. Nor do I think that a plaintiff's explanation for delay must necessarily exculpate him from all "fault" or "culpability" before the court may exercise its discretion in his favour. ... [11] In concurring reasons agreed with by his colleagues, Chief Justice McEachern added: [74] Applying the same principles regardless of whether the application is to add new defendants, as in Ricketts or new causes of action, as in Med Finance, I believe the most important considerations, not necessarily in the following order, are the length of the

delay, prejudice to the respondents, and the overriding question of what is just and convenient. [77] As to what is just and convenient, it is significant, in my view, that the issue of coverage sought to be added by the amendment will be tried in any event as between the appellant and the broker. Thus it will not be inconvenient to include the appellant's claim against the insurers in the same litigation. [Emphasis added.] [12] Further, where a new cause of action or defence is sought to be pleaded, the new pleading must satisfy the basic rules on pleadings. In the case of a response to civil claim, Rule 3-3(2) requires a defendant to set out "a concise summary of the legal basis" for the opposition to the relief claimed by the plaintiff, and satisfy Rule 3-7. Rule 3-7 provides: (12) In a pleading subsequent to a notice of civil claim, a party must plead specifically any matter of fact or point of law that (a) the party alleges makes a claim or defence of the opposite party not maintainable, (b) if not specifically pleaded, might take the other party by surprise, or (c) raises issues of fact not arising out of the preceding pleading. (17) It is sufficient to allege malice, fraudulent intention, knowledge or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred. [Emphasis added.] [13] In considering an

application to amend a pleading to allege a new cause of action or defence, it is helpful to consider the standard established for striking a pleading under Rule 9-5(1)(a). In other words, the positive requirements of a valid pleading complement the considerations applied under Rule 9-5(1)(a): (1) At any stage of a proceeding, the court may order to be struck out or amend the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be[.] [14] In amending a pleading it is, of course, important that the additions are not inconsistent with the pleadings already filed. Here the pleading sought to be added, a defence of fraudulent misrepresentation nullifying the guarantee, is inconsistent with the earlier admission in the amended statement of defence of a valid guarantee. Thus Mrs. LeRoy must first abandon that admission in order to plead her positive averment that she is not liable on the guarantee because of fraudulent misrepresentation. [15] The discretion to allow the withdrawal of admissions engages the potential for prejudice and the interests of justice. In Fontaine v. British Columbia (1996), 22 B.C.L.R. (3d) 371 (C.A.), Chief Justice McEachern, concurred with by the majority on this issue, held that an admission may be withdrawn if there is no prejudice to the other side, and even if

there is prejudice such that perfect justice is not possible, justice is best served by permitting the withdrawal "so that the real matters in controversy between the parties may be decided on the merits". [16] I will address the issue of the withdrawal first. Century Services does not contest the withdrawal of the admission except as is implicit in advancing its opposition to the substantive issue of the new defence. That approach accords with the approach taken by the judge. Understanding that the admission of a valid guarantee should be withdrawn in the event inclusion of the defence of fraudulent misrepresentation is allowed, I turn to the application to amend. [17] Insofar as an amendment to the pleading must allege a viable claim or defence, the application must stand on the substance of the pleading and not on evidence, just as an application under Rule 9-5(1)(a) to strike a pleading engages the substance of the pleading without the aid of evidence. [18] Given the complementary aspects of applications under Rules 6-1 and 9-5(1)(a), and the factors considered by the judge, the judge's discussion on Rule 9-5(1)(a) addresses some of the considerations relevant to the Rule 6-1 application to add the defence of fraudulent misrepresentation to Mrs. LeRoy's pleading. [19] The parties agree the judge correctly identified the elements of fraudulent misrepresentation. She

described them: [56] The elements of fraudulent misrepresentation are: (a) the making of a false representation to the party alleging the wrong; (b) made either: i. knowing it to be untrue, ii. without belief in its truth, iii. or reckless as to whether it be true or false; (c) the false representation caused the complaining party to act and to suffer a loss. [20] In addition, the judge observed: [57] Our Court of Appeal also states that an element of fraudulent misrepresentation is that the representing party intended the victim to act on the representation: Islip v. Coldmatic Refrigeration of Canada Ltd., 2002 BCCA 255 at para.

4. If the representation is reckless, it is not necessary that there be an intention to deceive, just a wanton disregard as to whether or not it will deceive: WS Leasing Ltd. v. Platinum Equipment Ltd., 2012 BCSC 558 at para. 33. [21] Century Services cast the defence advanced by Mrs. LeRoy as a defence of misrepresentation by omission. As to this the judge said: [65] I agree with the defendant that the theory of the defendant's allegations is one based on affirmative misrepresentation: that the liability would be as set out in the loan documents. She said, further: [67] In my view all of the elements of fraudulent misrepresentation can be inferred from the defendant's pleading, although perhaps it is not set out as well as it could be. For example, the present pleading includes some of the material facts in Part 3, the Legal Basis, namely, the fact that the representation was in the Loan Agreement. This aspect of the facts should be pleaded in Part 1. Likewise, it can be inferred from the pleading that the defendant alleges that the plaintiff intended the representations in the loan documents to induce the plaintiff to sign the guarantee, but it would be preferable if this were made express. And: [69] I conclude that it is not plain and obvious that the Fraudulent Misrepresentation Allegations in the defendant's Response to Civil Claim are bound to fail. However, the Response

to Civil Claim should be amended to more clearly plead the allegations, and I grant leave to the defendant to do so as her counsel may advise. At the same time, the defendant has leave to amend para. 20 of Part 1 of the Response to Civil Claim, which contains an editing or drafting error. While this was not the subject of the present application the error was pointed out in the course of the hearing. [22] On this appeal Century Services, taking a list of elements set out in Rahn v. McNeill (1987), 19 B.C.L.R. (2d) 384 (S.C.) submits that the proposed response to civil claim does not adequately plead: a) the alleged misrepresentation; b) when, where, how, by whom and to whom the misrepresentation was made; c) the inducement; d) the intention that Mrs. LeRoy should rely on the misrepresentation; e) the alteration by Mrs. LeRoy of her position in reliance of the misrepresentation; and f) any concealment or knowledge by Century Services of Mrs. LeRoy being misled. [23] Further, it says Mrs. LeRoy has not pleaded that she would not have entered into the guarantee had she known of the practice she now complains of. I take that to be a particularized submission on point (c) or (e) above. [24] The most useful summary of the elements of fraudulent misrepresentation, and the formulation used by the judge is found in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1

S.C.R. 126: [18] The classic statement of the elements of civil fraud stems from an 1889 decision of the House of Lords, Derry v. Peek (1889), 14 App. Cas. 337, where Lord Herschell conducted a thorough review of the history of the tort of deceit and put forward the following three propositions, at p. 374: First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. . . . Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made. [19] This Court adopted Lord Herschell's formulation in Parna v. G. & S. Properties Ltd., [1971] S.C.R. 306, adding that the false statement must "actually [induce the plaintiff] to act upon it" (p. 316, quoting Anson on Contract). Requiring the plaintiff to prove inducement is consistent with this Court's later recognition in Snell v. Farrell, [1990] 2 S.C.R. 311, at pp. 319-20, that tort law requires proof that "but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of". [20] Finally, this Court has recognized that proof of

loss is also required. As Taschereau C.J. held in Angers v. Mutual Reserve Fund Life Assn. (1904), 35 S.C.R. 330, "fraud without damage gives . . . no cause of action" (p. 340). [21] From this jurisprudential history, I summarize the following four elements of the tort of civil fraud: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff's actions resulted in a loss. [25] It can be seen that Bruno Appliance organizes the elements into a shorter list than does Rahn. For example, inducement and reliance, points (c) and (e) of the Rahn list, are found in Bruno Appliance at para.

19. I have found it convenient to refer to Bruno Appliance rather than Rahn in considering Mrs. LeRoy's response to civil claim. [26] The response to civil claim pleads: the representation, being that the guarantee was for a limited sum plus all reasonable out-of-pocket costs and expenses; Century Services' normal business practice prior to the guarantee "was to fraudulently pad its expenses by charging debtors expenses" not incurred; Century Services charged such "expenses" to the company "with the knowledge it did not incur them"; Mrs. LeRoy "would not have entered into the Guarantee contract" had she known of them; and Century Services had knowledge of the practices it alleges were fraudulent and failed to disclose them. It alleges that Century Services' "representation to [Mrs. LeRoy] and the act of proffering the Loan Agreement as the basis for liability in the future constitutes a fraudulent misrepresentation which vitiates the Guarantee". [27] As the judge observed, not all elements of fraudulent misrepresentation are found in Part 1 of the response to civil claim; portions of Part 3 belong in Part 1. With respect, however, this disorganization is more a product of the new form for pleading which seems to invite both separation of an entire story into unnatural chapters and the undesirable practice of pleading law. I would not fault Mrs. LeRoy for this confusion, nor did

the judge find it of any consequence. [28] Referring, then, to the organization of elements in Bruno Appliance, one sees that the following elements are pleaded: 1) a representation is alleged to have been made by Century Services to Mrs. LeRoy through the language of the Loan Agreement and guarantee, on the date of the documents, that liability was for expenses "X"; 2) the representation was false, as it is alleged Century Services had a practice of charging expenses "Y"; 3) Century Services knew the representation was false; and 4) the alleged misrepresentation caused Mrs. LeRoy to enter into the guarantee - she pleads she would not have entered into the guarantee had she known the actual billing practice of Century Services. [29] Further, the allegation of loss is apparent in the pleadings. In the event the guarantee is found to be valid, Mrs. LeRoy is liable under the guarantee. That is the point of Century Services' legal proceedings. [30] I further observe, as did the judge, that Century Services evinced an understanding of the defence of fraudulent misrepresentation in its materials filed with the application. Indeed, this understanding is also reflected in its reply filed April 29, 2013, which traverses the response to civil claim. [31] Thus, in my view, the contention of Century Services that the response fails to adequately plead the defence of fraudulent

misrepresentations cannot succeed. There being no issue on the other factors usually considered on a Rule 6-1 application to amend, and considering the robust approach appropriate in considering the amendment of pleadings, there is, in my view, no sound basis upon which to interfere with the order permitting the response to civil claim to stand. II. The Availability of Dismissal for Summary Judgment [32] Century Services sought summary judgment pursuant to Rule 9-6, saying the defence of fraudulent misrepresentation is bound to fail, as the pleading is insufficient and there is no evidence to support the allegations. In making this submission it relies upon Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500. In Skybridge this court addressed the sufficiency of pleadings in the context of an application for summary judgment. It may be that such an approach suited the circumstances of the case, but I do not consider, as a general approach, that it is helpful to conflate the various rules. Rule 9-6 is a rule distinct from Rule 9-5; a challenge to pleadings is effected by Rule 9-5, whereas Rule 9-6 allows for the summary determination of a claim in a procedure that engages evidence but does not assume the character of a summary trial. [33] The different character of the rules for summary judgment and striking pleadings was described well by Mr. Justice Low in

International Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong Limited, 2011 BCCA 149: [9] Rules 9-5 and 9-6 are quite different. The former is an attack on the pleadings on the basis that the action or the defence, as pleaded, cannot succeed as a matter of law. It raises a matter of law only. The latter is an assertion that the claim or the defence is factually without merit. It raises an issue of fact only or, at most, an issue of mixed fact and law, unless under subrule (5)(c) the court determines that "the only genuine issue is an issue of law", in which case it "may determine the question [of law] and pronounce judgment accordingly." [10] Rule 9-5 is concerned only with the sufficiency of pleadings. It provides in subrule (1) that the court may strike or amend any pleading, in whole or in part. Subrule (2) prohibits the filing of evidence on an application under subrule 1(a). An order striking a pleading could not be the basis for a res judicata defence in subsequent proceedings. [11] Rule 9-6 permits an application for summary judgment, either allowing a claim in whole or in part or dismissing a claim in whole or in part. It is clear that the result sought by the application would support a future pleading of res judicata. [34] And: [28] When there is an attack on a pleading as showing no reasonable claim or defence the court is well advised to first

consider whether the pleading can be preserved by amendment. ... [35] Rule 9-6 provides: (2) In an action, a person who files an originating pleading in which a claim is made against a person may, after the person against whom the claim is made serves a responding pleading on the claiming party, apply under this rule for judgment against the answering party on all or part of the claim. [Emphasis added.] [36] And: (5) On hearing an application under subrule (2) or (4), the court, (a) if satisfied that there is no genuine issue for trial with respect to a claim or defence, must pronounce judgment or dismiss the claim accordingly, (b) if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue or pronounce judgment with a reference or an accounting to determine the amount, (c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and (d) may make any other order it considers will further the object of these Supreme Court Civil Rules. [Emphasis added.] [37] In this case Century Services did not seek judgment on all or part of its claim (Rule 9-6(2)); rather, it sought "an order that the pleas of fraud and fraudulent misrepresentation be dismissed". It filed affidavits contesting the allegations and says that based on that evidence the court

should find the defence of fraudulent misrepresentation has no chance of success at trial. [38] At the hearing of the appeal we questioned whether Rule 9-6 is available to a plaintiff to decide only one defence when the decision cannot lead to the disposition of any discrete portion of the claim. Counsel have filed further submissions on this issue, which we have now considered. [39] Century Services contends that Rule 9-6 is available to strike an "affirmative defence". It refers to the oft-stated proposition that the summary judgment rule is intended to weed out claims that have no chance of success, see for example Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R.

372. It refers as well to Foundation Co. of Canada Ltd. v. Pagebrook Maitland Properties Inc., [1984] B.C.J. No. 626 (Co. Ct.); Mapletoft v. Service, [2008] O.J. No. 693 (Sup. Ct.); and Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2012 BCSC 564. However, neither of the British Columbia cases address the question posed here. In Foundation Co. of Canada the plaintiff sought final resolution on part of its builders lien claim, that is, the judgment sought would finally determine part of the claim. In Westsea Construction the court refused to dismiss a defence, observing that doing so would not result in a judgment on part or all of a claim. And the Ontario case does not suggest that an affirmative defence will be dismissed where doing so would not result in judgment on part or all of the plaintiff's claim. [40] We have been referred to no case in which the summary judgment rule, which has long existed, has been used to effectively strike out a portion of a defendant's pleading without at the same time giving judgment on a portion of the plaintiff's claim, in contrast, for example, to cases in which a defence has addressed only part of a plaintiff's claim, such as Canadian Imperial Bank of Commerce v. Lisowick (1984), 57 B.C.L.R. 77 (C.A.), and Royal Bank of Canada v. Timely Auto Sales Inc., [1983] B.C.J. No. 2416 (C.A.). [41] To use Rule 9-6 in the fashion advanced is

effectively to use it to decide "an issue", without those words appearing in the rule. It is to be remembered that the innovation in 1983 of the summary trial rule, Rule 18A, now Rule 9-7, expressly allows for the final determination of "an issue". Yet, despite revision to the Rules, the summary judgment rule does not include that felicitous phrase, and keeps to the traditional language of judgment on "all or part of the claim". [42] Looking both at Rules 9-6 and 9-7, one can see the term "judgment" is used with the traditional connotation of finality, as compared to interlocutory: Canadian Imperial Bank of Commerce v. Nandhra (1977), 31 B.C.L.R. 242 (C.A.). Although the classic distinction between a judgment and order may have blurred, the description of Lord Esher, M.R. in Onslow v. Commissioners of Inland Revenue (1890), 25 Q.B.D. 465 (C.A.) of "a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established", appears to me to convey the meaning of "judgment" in these two rules. [43] Effectively, without language providing for this result, Rule 9-6 is being used in this application to litigate in slices, with no final determination on liability in any respect. [44] Century Services invokes Rule 9-6(5) in aid of its application. However that sub-rule, while referring to "a claim or defence", ends with

the mandate to pronounce judgment or dismiss the claim. Neither of these alternatives are available on the application presented. [45] The essential difficulty for Century Services on the Rule 9-6 application is that Mrs. LeRoy's other defences address the entirety of Century Services' claim. As was stated by Mr. Justice Lambert in Golden Gate Seafood (Vancouver) Co. v. Osborn & Lange Inc. (1986), 1 B.C.L.R. (2d) 145 (C.A.), and quoted with approval by Chief Justice McEachern in discussing the difference between summary judgment and summary trial in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.), for a summary judgment application by the plaintiff to be successful it "must be that there is no defence to the whole or a part of the claim". [46] I consider that Rule 9-6 is not intended to provide an avenue for a plaintiff to obtain a decision on only one defence in circumstances in which other defences are asserted that may provide an answer to the whole of the claim; the simple dismissal of this defence, as sought, is not available under Rule 9-6. [47] Thus far I have not addressed the appellant's submission that the defence of fraudulent misrepresentation, considering the pleading and the evidence adduced, is doomed to fail and thus an order should be made effectively resolving the issue of fraudulent misrepresentation in its

favour. [48] The judge was not satisfied the defence was doomed to fail. She said: [109] I find that the evidence on this application does raise a triable issue on the Fraudulent Misrepresentation Allegations. On its face, the evidence is sufficient to raise a reasonable suspicion of misconduct: the admission as to the charges made by the plaintiff to TLT's account when contrasted to the language of the Loan Agreement; the admission that this was a practice of the plaintiff, to bill debtors for employee time charged at a rate that included a profit margin; combined with a lack of evidence as to any clear policies or internal controls documenting these kinds of charges or as to any form of clear notice to debtors of these charges being made. [110] This is not to say that either party has a stronger case on the merits; simply that there is a triable issue such that the Fraudulent Misrepresentation Allegations ought not to be dismissed on the plaintiff's summary judgment application. [111] Having concluded that there is a triable issue, the defendant is entitled to withdraw the admission contained in para. 16 of the Amended Statement of Defence, as discussed above. [49] Were this a matter amenable to an order under Rule 9-6, which I consider it is not, I would say this assessment is well within the discretion afforded the judge. I could not say the judge erred in directing the

defence of fraudulent misrepresentation to trial. III. Production of Documents [50] The judge made an extensive order for the production of documents, including records of Century Services' loans to other borrowers, appropriately redacted. Century Services contends the documents are not relevant to the litigation. [51] The great breadth of the order for production of documents is, in the least, unusual, at least at this stage of the litigation. At the time this part of the application was heard, the pleadings were not settled. It seems to me to have been premature to make a broad order for production of these documents before the parties had come to a full appreciation of the scope of the triable issues, and had an opportunity to approach discovery in appropriately-sized steps. [52] Without further comment on the content of the required document production, I would set aside para. 4 of the order requiring document production, leaving the extent of appropriate discovery of documents for future determination by the trial court. This being so, in my view paras. 5 and 6 of the order, which refer to para. 4, should also be set aside, on the basis that amendments to pleadings and provision of particulars may yet be addressed by the trial court. Conclusion [53] For these reasons, I would allow the appeal only to the extent of setting aside paras. 4, 5, and 6 of the order. "The Honourable Madam Justice Saunders" I AGREE: "The Honourable Madam Justice Neilson" I AGREE: "The Honourable Mr. Justice Groberman"