What is the evidentiary record of a motion under Rule 23.01(1)(b)?

New Brunswick, Canada


The following excerpt is from Johnston v. Saint John Regional Hospital, 2001 NBQB 140 (CanLII):

As mentioned, in the usual case, the pleadings are determinative of a motion under Rule 23.01(1)(b). They are however but one feature of the record to be considered by the court on a motion under Rule 22. On a motion for summary judgment the court is required to determine whether; in light of any binding admissions, whether made in the pleadings, under Rule 51 or [Page 46] otherwise, and the evidence adduced by the parties, there remains an unresolved question of fact that requires a trial. See Cannon v. Lange, supra, at para. 21, and the cases cited therein. The evidentiary record must include an affidavit by the moving party that complies with Rule 22.02. The record may also include other affidavits and viva voce evidence under Rule 39.03.

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