The Applicant, Canapen (Phipps-McKinnon) Ltd. (“Canapen”), applied for leave to appeal a decision made by the municipal Composite Assessment Review Board (“the Board”), and filed an Affidavit in support of its Application. The Defendant, City of Edmonton, objected to the use of the Affidavit. It sought to strike it under Rule 3.68(4) as improper and irrelevant. Justice Jerke considered when Affidavit evidence was allowed to be used to support the Application for leave to appeal, and second, whether any parts of this particular Application were objectionable.  Jerke J. first discussed when Affidavit evidence may be used to support an application for leave to appeal under the Municipal Government Act (“the Act“) by interpreting section 470.1(1) of the Act.  The City of Edmonton argued that the Municipal Government Act (“the Act“) did not allow for new evidence to be used to support an Application for leave to appeal on questions of law or jurisdiction.Jerke J. stated that the relevant section referred to Appeals themselves, not Applications for leave to appeal. Further, the City’s literal interpretation of the relevant legislation could unfairly shield certain errors of law from Appeal, including breaches of the rules of natural justice and reasonable apprehension of bias. Since Canapen’s Claim included allegations that the Board breached the rules of natural justice, Jerke J. held that new evidence relating to breaches of natural justice should be admissible.

Jerke J. reviewed the general requirements for Affidavits under the Rules, noting that, pursuant to Rule 3.8, an Affidavit supporting an Originating Application must contain only statements of facts in the personal knowledge of the person swearing the Affidavit; and any other evidence that the person swearing the Affidavit may adduce at Trial. Pursuant to Rule 13.18, Affidavits for such Applications may either be sworn on the basis of personal knowledge or personal belief.

Canapen argued that the Affidavit was not objectionable, but Justice Jerke held that some sections constituted “nothing more than a summary of the proceedings”. Although His Lordship held that some portions of the Affidavit should be admitted because they introduced evidence relating to Canapen’s claim, the remaining portions of the Affidavit were found to be of little value. Jerke J. granted Canapen leave to file a different Affidavit and supplementary Brief.