1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
6.11: Evidence at application hearings
13.18: Types of affidavit

Case Summary

The Applicant, the Minister of Agriculture and Forestry (the “Minister”), sought an Order striking portions of and entire Affidavits filed in support of ANC Timber Ltd.’s (“ANC”) in the underlying motion for an interim injunction and/or interim stay of a forestry directive (the “Directive”). The Directive primarily concerned restrictions on ANC’s ability to harvest timber under the terms of a forest management agreement (“FMA”). After an unsuccessful bid to obtain regulatory approval to harvest trees in an area contemplated by the FMA, but prohibited by the Directive, ANC filed a motion seeking the above noted relief (the “Underlying Motion”).

ANC initially relied on voluminous Affidavits, totalling 1576 pages, in the Underlying Motion (the “Affidavits”). The Minister responded with a motion to strike some 43 paragraphs of the Affidavits as well as numerous exhibits on the grounds that the evidence was irrelevant, unnecessary, hearsay, argument, conclusory and/or expert opinion evidence. The contested exhibits included numerous third-party reports, newspaper articles, maps, and some summaries prepared by unidentified sources (the “Contested Evidence”). Topolniski J. found that the overarching issue was whether the Contested Evidence was properly admissible evidence, or whether it should be struck under Rule 3.68(4)(a).

Justice Topolniski noted a growing trend of litigants conducting research on the internet and attaching “what spews forth to an affidavit without regard to its propriety.” Accordingly, Her Ladyship promptly dissuaded litigants of any notion that this conduct was appropriate or helpful. Topolniski J. reviewed Rule 13.18 and found that while typically Affidavits must be sworn on the basis of personal information, the Rules do allow for hearsay evidence if it is accompanied by a statement providing the source of the evidence and the deponent’s belief in its truth. Her Ladyship noted though that the Court is not mandated to accept such evidence.

Turning to the argument of whether the Contested Evidence was expert opinion evidence, Topolniski J. found it was trite law that expert evidence is permissible on interim motions and identified Rule 6.11 as specifically allowing expert evidence in Affidavit form. In determining whether to accept the evidence, Justice Topolniski thoroughly reviewed the seminal factors in
R v Mohan,
1994 CanLII 80 (SCC), [1994] 2 SCR 9 and concluded that the benefit of admitting some of the Contested Evidence outweighed its cost.

Accordingly, in compliance with the foundational Rule 1.2 for expedient and cost-effective hearings, Justice Topolniski struck several paragraphs and exhibits within the Contested Evidence for being argumentative, conclusory, irrelevant, and/or expert opinion evidence while allowing some of the evidence to remain in support of the Underlying Motion.

View CanLII Details