The Appellant commenced an Action against the Respondents related to a cosmetic surgery procedure. Subsequently, the Respondents filed a Security for Costs Application. In response, the Appellant filed an Affidavit containing a paragraph expressing an opinion about the Respondents (the Paragraph). The Respondents applied to have the Paragraph struck under Rule 3.68(4)(a), asserting it was frivolous, irrelevant, and improper. The Appellant later filed a further Affidavit opposing the Application, reiterating the Paragraph and arguing why it should not be struck. An Applications Judge granted the Respondents’ Application, striking the Paragraph from both Affidavits on the basis that the Appellant was not qualified to provide opinion evidence.

The Appellant appealed the Decision to a Justice of the Court of King’s Bench. That Appeal was dismissed, as the Chambers Judge found the Paragraph to be an unsupported statement and an opinion the Appellant was not qualified to give. The Chambers Judge emphasized that the law on evidence clearly prohibits the admissibility of opinion evidence and further noted that the Paragraph was irrelevant to the Security for Costs Application.

The Appellant further appealed to the Court of Appeal, arguing that the Chambers Judge failed to provide meaningful reasons for the Decision and relied on CLM v DGW, 2004 ABCA 112, to assert that Affidavit evidence should only be struck if it is scandalous, irrelevant, or oppressive. The Appellant also contended that the Chambers Judge should have left the determination of the Paragraph’s admissibility to the Judge hearing the Security for Costs Application. Additionally, the Appellant appealed the $200 Costs Award.

The Court disagreed with the Appellant, affirming that the Chambers Judge clearly found the Paragraph improper since the Appellant was not qualified to provide opinion evidence. The Court noted that the case cited by the Appellant referenced language from the former Rule 307, whereas the current Rule 3.68(4)(a) allows the Court to strike all or part of an Affidavit containing frivolous, irrelevant, or improper information. The Court explained that while the Judge hearing the substantive Application is often better positioned to determine the relevance and admissibility of uncertain evidence, it is appropriate to strike clearly irrelevant or inadmissible evidence in advance to uphold fundamental evidentiary standards. The Court also found no reviewable error in the Chambers Judge’s Decision, noting that despite obtaining an adjournment, the Appellant failed to comply with the resulting Court Order to provide particulars of the Appeal.

Consequently, the Court dismissed the Appeal and awarded Costs to the Respondents.