What is the test for establishing there are no material facts in dispute?
Prince Edward Island, Canada
The following excerpt is from BMO v. Masseau, 2004 PESCTD 9 (CanLII):
Once the plaintiff has established there are no material facts in dispute, the defendants must establish on specific facts and cogent evidence that there is a genuine issue for trial. It is not sufficient to say that more or better evidence will or may be available at trial. The court may, on a commonsense basis, draw inferences and look at the overall credibility of the plaintiff’s action. The court must take a hard look at the merits to decide if any conflict is more apparent than real in terms of credibility arising out of conflicting evidence. Pizza Pizza Ltd v. Gillespie 750 OR (2d) 1255.
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