The Applicant Defendants applied for Summary Dismissal of the Plaintiffs’ claim against certain Defendants (the “Summary Dismissal Application”). The Plaintiffs opposed the Summary Dismissal Application and applied to strike portions of the Defendants’ Affidavits (the “Striking Application”). The Court was asked to determine whether any portion of the Defendants’ Affidavits should be struck prior to the Summary Dismissal Application.

The Court set out the prevailing principles for Summary Judgment and the evidentiary screening principles in the context of Summary Judgment Applications. Further, the Court noted that it had jurisdiction to engage in evidentiary screening pursuant to Rule 3.68(4). The Court then reviewed the evidentiary principles related to Affidavit evidence and addressed the Plaintiff’s grounds for the Striking Application, i.e., argument, conclusion (fact), conclusion (law), opinion, and hearsay.

With respect to hearsay, the Court cited Rule 13.18(3) and noted that an Affidavit used in support of an Application should generally be based on personal knowledge. Although there is some flexibility when applying Rule 13.18(3) in Summary Judgment Applications to admit evidence not based on personal knowledge, hearsay should only be admitted if it would be admissible at Trial, or if it meets the requirements for a principled exception to hearsay.

After applying the evidentiary principles to the impugned Affidavits, the Court struck certain portions of the Defendants’ Affidavits.