5.29: Acknowledgment of corporate witness’s evidence
5.31: Use of transcript and answers to written questions
6.6: Response and reply to application
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

This Application involved consideration of the meaning of putting one’s “best foot forward” in an Application for Summary Judgment, and the extent of the Applicant’s burden of proof when the burden at Trial on a particular point would be on the Respondent.

The Plaintiffs applied for Summary Judgment on claims pertaining to the repayment of loans. The Defendant opposed Summary Judgment, arguing that the loans had been repaid. In the alternative, the Defendant sought Summary Dismissal of the claim, even though it did not file an Application to that effect nor did it provide Affidavit evidence. The Court noted that in order to be successful, it would have to rely on the Plaintiffs’ evidence or other evidence showing that the grounds for Summary Dismissal were met, pursuant to Rule 7.3(2).

The Plaintiffs attempted to rely on evidence given by one of the directors of the Defendant (Mr. Kinder) in pre-trial Questioning, but that testimony had not yet been put to the corporate representative of the Defendant for him to acknowledge on behalf of the Defendant pursuant to Rule 5.29. The Court rejected use of Mr. Kinder’s evidence, dismissed the Defendant’s request for Summary Dismissal, and granted Judgment for the cheque amounts.

The Defendant provided an Affidavit from Mr. Mooney, another director of the Defendant, which provided evidence that the agreement between the Plaintiff and Defendant was made under duress. However, Mr. Mooney was not in the room when the agreement was made.

The Court canvassed the issue of hearsay evidence provided by a Respondent to a Summary Judgment Application, and confirmed that Rule 13.18 clearly allows hearsay from the Respondent to an Application where the Respondent is not seeking final relief if the source of the information provided and the affiant states their belief in the information. However, the Applicant for final relief (for example, and Applicant for Summary Judgment or Summary Dismissal) must provide evidence of personal knowledge and/or rely on other evidence to the effect that there is no defence to a claim or part of it, pursuant to Rule 7.3.

In this case, the conditions were met to allow the Respondent/Defendant to rely on hearsay evidence in opposing the Application. However, the hearsay evidence could only be used to show that at some unspecified time Mr. Kinder said that he had signed the agreement under duress, not that he was actually under duress. The Court underscored that it is a basic rule of the law of evidence that evidence that a statement was made is not the same as evidence of the truth of the contents of the statement.

The Plaintiffs attached to their Brief some excerpts from an examination of Mr. Kinder under Part 5 of the Rules. The Plaintiffs argued that Rule 5.31 allows for the use of that transcript in support of an Application as against a party adverse in interest. The Court determined that until evidence has been put to the corporate witness to acknowledge the evidence as information of the corporation pursuant to Rule 5.29, it is not the evidence of the “other party”, and that it was only Mr. Kinder’s evidence, not the Defendant’s. Master Robertson emphasized that there is a good reason for this Rule: if the Defendant is required to acknowledge it (thereby making it the Defendant’s evidence), the Defendant may also qualify the acknowledgment with further evidence that is contrary, pursuant to Rule 5.29(3). The Court therefore disallowed the use of the transcript evidence of Mr. Kinder which was not yet put to the corporate representative of the Defendant.

The Defendant did not file any Affidavit in response to the Application until days before the Plaintiffs’ Brief was due. The Court noted that Rule 6.6(1) requires that the Respondent to an Application file any Affidavit or other evidence in reply a “reasonable time” before the Application is to be considered. The Court added that pursuant to Rule 6.6(3) the late presentation of evidence should not be tolerated.

In the result, the Court granted Summary Judgment in favour of the Plaintiffs for the full amount of the debt. Further, the Court granted interest up to the date of the release of the Court’s Decision. The Court dismissed the Defendant’s request for Summary Dismissal.

View CanLII Details