A Genuine Issue for Trial

We were arguing my appeal of the Schoolteacher's summary judgment, and Mr. Mackwood was up first. He spoke for maybe 25 minutes, sticking close to the Schoolteachers' main argument: that I had no evidence of malice to defeat their defence of Qualified Privilege. This was the argument that Master Berthaudin had found convincing at the original hearing last December. At that time I had argued that I was not obligated to provide evidence at this stage of the proceedings, because the Schoolteachers had not met their "first-stage onus" on summary judgment: to make a prima facie case that my pleadings could not stand.

Mr. Mackwood argued that the Schoolteachers had the best possible evidence of bona fides (lack of malice): namely, their own sworn testimony that they had acted at all times in good faith. Who, after all, is more qualified to testify as to their state of mind than the owner of the "mind" in question?

I found that argument to be disingenous at best: of course they are going to deny malice. That an impregnable defence. Furthermore, my position was backed up by significant case law, where judges have held that at the summary judgment stage, the courts should not make findings on the state of mind based on the uncorroborated assertions of the claimant. I was prepared to argue before Justice Martin that the protestations of innocence on by Mr. Tram and Mrs. Skull did not rise above the level of what is known as "bald assertions and self-serving affidavits".

But Master Berthaudin hadn't bought that argument in December, and that was why I was back in court. So this time I was also prepared to argue that even assuming the Schoolteachers had met their "first-stage onus", that I had sufficient evidence to meet my "second-stage onus" on Summary Judgment: namely, to show that there was still a genuine issue for trial that could not be settled at the summary stage.

And that was where we stood when Mr. Mackwood concluded his arguments and I rose to make my response...