What is the legal test for determining whether a petition can be decided on the basis of affidavit evidence?
British Columbia, Canada
The following excerpt is from Cherry Lane Shopping Centre Holdings Ltd. v Hudson’s Bay Company ULC Compagnie De La Baie D’Hudson Sri, 2021 BCSC 1178 (CanLII):
Nevertheless, regardless of the agreement the parties have made, I must be satisfied that there are no disputes as to the facts or law which raise a reasonable doubt or which suggest there is a defence that deserves to be tried. This is the test for determining whether a petition can be decided on the basis of affidavit evidence or whether it should be referred to the trial list. The test is set out in Robertson v. Dhillon, 2015 BCCA 469, as follows:
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