The Plaintiff commercial landlord sued a former tenant for damages for unpaid rent, but also named additional individuals and a corporation based on allegations of conspiracy and inducement of breach of contract. The additional individuals and corporate Defendant (“Defendants”) brought an Application for Summary Dismissal of the Claim against them, arguing that the only proper Defendant was the former tenant. Only the Defendants submitted Affidavit evidence to the Court for the Application, but the Court reiterated that the onus was on the Applicant in a Summary Judgment Application to establish that the record permitted a fair and just adjudication. Only once the Applicant had met this obligation did the onus shift to the Respondent.

The Plaintiff argued that the Defendants’ assertions in their Affidavits could not be relied upon because they were contrary to records presumed to be admitted as authentic under Rule 5.15(2) from the Defendants’ own Affidavit of Records. The records included a number of emails sent by the Defendants evidencing their involvement. The Defendants argued that the documents being presented to the Court were an attempt to prove the truth of their contents, as opposed to being presented for the limited deemed authenticity purposes of Rule 5.15. The Court noted that Rule 6.11(1)(d) permits the use of an admissible record disclosed in an Affidavit of Records, but acknowledged the distinction between deemed authenticity of a record and admissibility for the proof of its contents. Here, the records were being produced for the fact that emails were sent and received on behalf of the Defendants; the Court was not being asked to rely on the truth of the content of the records. The Plaintiff also cited Rule 6.11 to rely on the transcripts from the Defendants’ Questioning, which it argued contradicted their own Affidavits.

Ultimately, the Court held that the Defendants had not met the burden for Summary Judgment, stating that the Plaintiff demonstrated inconsistencies in the Defendants’ evidence, which meant that their position was not “unassailable”. The Application was dismissed.