BRIGGS v ORLOWSKI, 2016 ABQB 476
6.11: Evidence at application hearings
7.1: Application to resolve particular questions or issues
The Plaintiff, Briggs, brought an Application under Rule 7.1 to determine whether or not he was time barred from bringing an Action for the division of quasi-matrimonial property based on a remedial constructive trust.
Both parties put forward evidence in the form of Affidavits which consisted largely of accusations and counter-accusations. Master Schlosser held that this did not allow for a proper assessment of credibility, and therefore stated that the dispute, and similar matrimonial disputes are “unsuited to Motions Court” because credibility “cannot be determined on paper evidence”. Master Schlosser emphasized that for Applications under Rule 7.1, it is the Applicant’s burden to prove the issue should be determined in their favour on a balance of probabilities, and that once a Rule 7.1 Application is made the issue cannot later be reopened or re-litigated. The Court could not assess any of the issues without making determinations about credibility.
Master Schlosser noted that, unless the door to admitting oral evidence at Application Hearings under Rule 6.11(1)(g) is “opened up”, the inability to make credibility findings “may be the greatest impediment to giving Masters matrimonial jurisdiction”. Master Schlosser therefore dismissed the Application, but noted that the Parties could return again under Rule 7.1 to Apply for a credibility finding on oral evidence in order to determine the limitations issue without a Trial.View CanLII Details