FLOCK v MCKEN, 2020 ABQB 744


3.14: Originating application evidence (other than judicial review)
5.2: When something is relevant and material

Case Summary

The Applicant applied to strike inadmissible portions of Affidavits filed by the Respondent in the main litigation pertaining to the severance of joint tenancy of a matrimonial home (the “Main Litigation”). In rendering its Decision, the Court considered Rule 5.2(1) which states that a question, record or information is relevant and material only if it could be reasonably be expected: (1) to significantly help determine one or more of the issues raised in the pleadings; or (2) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.

Most of the Applicant’s objections to the impugned sections of the Respondent’s Affidavits were that they contained references to arbitration proceedings completed in 2003 and the resulting award, which was set aside (the “2003 Arbitration”). The Applicant also referenced a previous 2019 Court of Appeal hearing on the matter (the “2019 Decision”) that ruled that not all content pertaining to the 2003 Arbitration should be excluded.

Justice Ho emphasized that she did not read the 2019 Decision as deciding that the 2003 Arbitration may not be referred to at all in the Main Litigation. As such, the Court admitted portions of the Respondent’s Affidavits that pertained to the 2003 Arbitration and past conduct of the parties. By contrast, Justice Ho excluded portions of the Affidavits pertaining to the 2003 Arbitration and counsels’ submissions or the arbitrator’s findings. 

With respect to the Respondent’s request for leave pursuant to Rule 3.14(1)(f) to use evidence filed by the Applicant in other litigation proceedings for the purposes of the Main Litigation, the Court declined to grant leave because the Respondents did not file a formal cross-Application, but relied on relief requested in their Brief in the Main Litigation.

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