The Plaintiffs sought leave to commence a Derivative Action. The Defendants opposed the Application and relied upon an Affidavit. The Plaintiffs sought to have certain portions of the Defendants’ Affidavit struck pursuant to Rule 13.18(1), which requires that an Affidavit be sworn on personal knowledge or on information and belief disclosing the source of the information and if the Application may dispose of all or part of a claim, the Affidavit is to contain only personal knowledge of the Deponent.

Graesser J. determined that the Affidavit did not comply with Rule 13.18 as certain information presented in the Affidavit was based on information and belief and the Affiant had failed to indicate the source of that information. Graesser J. determined that the source of the information was determined when the Affiant was Questioned on the content of the Affidavit. Graesser J. decided not to strike the Affidavit, as requiring the Affiant to swear a replacement Affidavit correcting the irregularities would be overly academic and unnecessarily formalistic, which is contrary to the objectives of the Rules.

The Defendants objected to some of the information within the Plaintiffs’ Affidavit on the basis that it had been produced in a separate Action and therefore breached the implied undertaking, which is codified by Rule 5.33, and therefore the Affiant was in contempt. Graesser J. determined that there may be theoretical non-compliance with the implied undertaking rule, but there was no prejudice to the Defendants and there was no contempt. The Plaintiffs could have amended the Originating Notice in the original Action, but instead filed a new Originating Notice. Had the new Originating Notice sought leave to use the information from the earlier Application in support of this new Application there would have been no issue about contempt. As such, to the extent that leave to use the information for the purposes of this new Application was necessary, Graesser J. granted such leave.