3.2: How to start an action
5.17: People who may be questioned
5.34: Service of expert’s report
5.39: Use of expert’s report at trial without expert
5.40: Expert’s attendance at trial
7.5: Application for judgment by way of summary trial
8.17: Proving facts
13.18: Types of affidavit

Case Summary

The Applicants sought a declaration that section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1 was unconstitutional. The Action was commenced by filing an Originating Application and three supporting Affidavits. The Attorney General (“AG”) responded by filing eight Affidavits.

In an earlier proceeding, Sanderman J. held that the Affidavits filed by the AG contained hearsay and were therefore in violation of Rule 13.18(3). The portions containing hearsay were struck. Sanderman J. also held that the proposed expert evidence was not relevant, and in any event, had not been in the proper form and before the Court as required by Rule 5.34(a). The AG appealed this Order. On Appeal, the Court of Appeal directed that the proceeding be converted from an Originating Application to a Statement of Claim. The Court of Appeal also directed that a Case Management Judge be appointed, who should determine the admissibility of the various Affidavits.

After being converted to a proceeding commenced by Statement of Claim, the AG applied for an Order directing that the matter be set for Summary Trial, pursuant to Rule 7.5. The AG proposed that the Summary Trial consider all Affidavits filed in the prior proceeding and the AG’s expert report. Burrows J. held that a Summary Trial was not appropriate for this matter, as to proceed in this manner would be contrary to the Court of Appeal’s directions. The Court of Appeal had converted the matter to one commenced by Statement of Claim pursuant to Rule 3.2(6), because Rule 3.2(2)(a) requires that an Action be commenced by Statement of Claim where there is a substantial factual dispute. Further, the factual dispute was better suited for an Action started by Statement of Claim where: (i) there is oral discovery pursuant to Rule 5.17(1); (ii) cross-examination of witnesses; and (iii) opinion evidence is received from a qualified expert who testifies in person after providing the expert report in Form 25, subject to Rules 5.39 and 5.40. A Summary Trial is not practically different than an Originating Application.

Burrows J. considered whether the Affidavits filed in support of the Originating Application were admissible. The Plaintiffs sought Questioning of at least some of the affiants to test the reliability and completeness of the evidence. Justice Burrows held that these were “good reasons” to not order that the Affidavits be admitted at Trial under Rule 8.17(2)(a). However, His Lordship held that the parties could agree to any fact contained in the Affidavits, as per Rule 8.17(1)(b). The AG’s Application to have the matter heard by way of Summary Trial was dismissed.

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