Master Schlosser

3.2: How to start an action
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiff commenced an Action by way of Originating Application in order to evict the Respondent’s son, a minor, from a condominium unit. The condominium unit in question was sold before the Court rendered its Decision so the eviction issue became moot.

One of the remaining issues before the Court was in relation to the nature and sufficiency of the evidence given in the Originating Application. Master Schlosser noted that pursuant to Rule 3.2(2), the Originating Application procedure is meant for situations in which there are no facts in dispute, or when a decision is the subject of Judicial Review. An Originating Application is decided on a balance of probabilities, unlike Summary Judgment Applications under Rules 7.3 and 3.68. Furthermore, pursuant to Rule 13.18(3), the evidence required in these circumstances must be first-hand, direct, and personal and cannot be hearsay as the Application may finally dispose of some or all of the issues. Master Schlosser considered the Affidavit evidence given by the Applicant condominium’s property manager, and held that the key evidence given was second-hand, and that the Affidavit was silent about certain facts in question.

The nature and sufficiency of the evidence given, in combination with other remaining issues before the Court, suggested that more was expected of the Plaintiff condominium’s board. Master Schlosser held that the Plaintiff’s Originating Application for fines and recovery of Costs was dismissed, and the Respondent’s Cross-Application was allowed. Finally, the fines issued to the Defendant by the Plaintiff condominium corporation were set aside.

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