3.15: Originating application for judicial review
5.34: Service of expert’s report
13.18: Types of affidavit

Case Summary

The Applicants were charged for refusing to leave a licensed premise after being directed to do so by the RCMP, pursuant to Section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1 (the “Act”). The Applicants filed an Originating Application for Judicial Review and sought a declaration that Section 69.1 of the Act is ultra vires the legislative authority of the Province of Alberta and infringes Section 2 of the Canadian Charter of Rights and Freedoms.

Once the Originating Application was filed, the Applicants applied to have certain Affidavit evidence filed by the Respondent struck out, as the Affidavits allegedly contained hearsay evidence, contrary to Rule 13.18, and inadmissible opinion evidence. The Applicants also objected to the expert Affidavit of the Respondents, arguing that the Affidavit was not in compliance with Rule 5.34, which requires an expert to disclose the information and assumptions upon which the opinion is based. The Applicants urged strict compliance with the Rules, as they ensure orderly and fair litigation. The Respondent argued that a liberal approach should be taken with respect to the relevance of evidence in order to allow the Respondent to defend legislation that has been enacted for the public good. It argued that the Act was properly enacted, and its intent is to provide protection to bar owners, staff and other patrons from gang members and prevent the influence of gangs in public bars. The Respondent further argued that the Court can only understand the need for such legislation by allowing Affidavit evidence in relation to the history of this matter and the general broad experience that peace officers have had in policing gang members in bars. A strict adherence to the Rules would prevent this.

Justice Sanderman stated that the procedural Rules are to be followed unless an exception can be made. Despite the Applicants seeking a final Order, the Respondent filed Affidavits that contravened Rule 13.18(3). Sanderman J. held that strict adherence to the Rules dealing with evidentiary matters is required in any Application for a final Order. As such, hearsay evidence is not permitted on such an Application. The hearsay portions of the Affidavits were struck.

With respect to the expert evidence, Sanderman J. noted that the issue to be determined by the Court is whether the Act can withstand the constitutional challenge raised by the Applicants. This is a legal question. The expert was not a legal expert and the Affidavit did not focus on the constitutional aspects of the dispute. Rather, it referred to the criminological and legal literature in relation to civil remedies. The Respondent’s expert was not an appropriate expert witness to offer opinions on legal issues. His evidence was unnecessary to determine the validity of the Applicant’s Claim. Further, the Affidavit was not in Form 25 as required by Rule 5.34(a). Therefore, the Affidavit was inadmissible for failing to comply with Rule 5.34 and on the basis that the evidence did not appear to be relevant or necessary to decide the constitutional issue before the Court.

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