1.5: Rule contravention, non-compliance and irregularities
3.15: Originating application for judicial review

Case Summary

The Applicant in this matter sought to file extrinsic Affidavit evidence in support of his Application to set aside an Arbitral Award. The Respondent challenged the timeliness of the Affidavit, pursuant to Rule 3.15.

Rule 3.15(5) requires an Applicant to file and serve an Affidavit used to support an Originating Application for Judicial Review no less than one month before the date scheduled for hearing the Application. In this case, the initial hearing date set out in the Application was March 13, 2019. However, the date scheduled for argument was January 10, 2020. The issue was whether the Applicant was required to file and serve his Affidavit one month before the initial hearing date or the date scheduled for argument.

Justice Ross determined that in the circumstances, Rule 3.15(5) should be interpreted as applying to the substantive hearing, not the original formal appearance. Justice Ross added that if the Court was wrong on this point, and Rule 3.15(5) was intended to apply to the original appearance date, rather than the actual hearing, then the non-compliance may be cured by Rule 1.5 if this is in the “overall interests of justice” and does not cause irreparable harm.

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