5.15: Admissions of authenticity of records
6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
14.75: Disposing of appeals

Case Summary

The Plaintiff, CCS, commenced an Action against the Defendants for building a dehydration plant near one of Pembina’s pipeline terminals in order to compete with CCS. Pembina, one of the many Defendants, applied to the Case Management Judge to have most of the suit summarily dismissed against it. A large part of the dispute before the Case Management Judge was whether CCS’s Affidavit evidence was admissible. The Case Management Judge struck much of CCS’s Affidavit in response to the Summary Dismissal Application, and then granted Summary Judgment on the basis of the remaining record. CCS appealed.

The Majority of the Court of Appeal reviewed CCS’s evidence which was submitted to defend the Summary Judgment Application, and found it to be, inter alia, “very skimpy”. The Majority noted that even when directed to a Summary Judgment Application, second-hand, bald or speculative Affidavits with scant details and no corroboration have low weight. The Court noted that a party resisting Summary Judgment must put its best foot forward for the Application. The Majority stated that whether the Appellant’s evidence was admissible or not was academic since it would not change the result. Thus, the part of the Appeal respecting admissibility ought to be dismissed pursuant to Rule 14.75(2). The Appeal was dismissed.

Slatter J.A., concurring in the result, noted that Rule 6.11(1)(d) permitted the use of an admissible record disclosed in an Affidavit of Records. His Lordship stated that this provision “is clearly intended to permit the use of something, and it remains an open question whether it merely repeats the presumptions of authenticity found in R 5.15”. Further, Slatter J.A. noted that Rule 13.18 permits the use of hearsay found in affidavits based on information and belief for some purposes, “so long as the source of the information is disclosed”. However, Justice Slatter observed that it remained an open question as to whether information and belief based on some sources was inadmissible or merely affects the weight of the evidence.

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