What is the evidentiary burden of an application under Rule 9-6?

An application under Rule 9-6 may involve the consideration of evidence. The judge should not weigh evidence, but “may draw inferences that are strongly supported by undisputed facts”: Kerfoot v. Richter, 2018 BCCA 238 at para. 31. Where there are disputed facts, the applicant “bears the evidentiary burden of showing that there is no genuine issue to be tried”: Kerfoot at para. 29.

Issues of mixed fact and law are most appropriately addressed under Rule 9-7: Foote v. Canada (Attorney General), 2012 BCSC 177 at para. 25. A claim may be dismissed pursuant to Rule 9-7(15) which provides: On a hearing of a summary trial application, the court may (a) grant judgment in favour of any party, either on an issue or generally, unless (i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or (ii) the court is of the opinion it would be unjust to decide the issues on the application. …