6.11: Evidence at application hearings

Case Summary

The Applicant sought an Order for vacant possession of her home and other remedies, including retrieval of certain personal property in the home. The home was held in joint tenancy with a former common law partner, who had passed away in February 2020. Title of the home was then transferred into the Applicant’s sole name through her right of survivorship. The Respondents, the family of the deceased, who were living in the home without paying rent, argued that the Applicant and the deceased were tenants in common, not joint tenants, and as a result there should be a calculation of what the ownership interest was.

The Respondents sought to rely on documents from an Affidavit of Records that they had filed in the Action in November 2020. The Applicant objected on the grounds that the materials were filed late and that accordingly, she had not responded with a further Affidavit. The Respondents argued that their delay was caused by the Covid-19 Pandemic and late access to Court documents.

Justice Eidsvik applied Rule 6.11 in determining that the Respondents could rely on the Affidavit of Records, but that the weight of some of the documents may be affected: for example, an Affidavit of the deceased that could not be cross-examined on. The Court also noted that many of the documents in the Affidavit of Records were admissible since they were pleadings that a Court could take judicial notice of. Rule 6.11(d) allows the Court to consider an admissible record disclosed in an Affidavit of Records under Rule 5.6, and Rule 6.11(e) allows the Court to consider evidence taken in any other Action, if notice is given to the opposing side.

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