13.18: Types of affidavit

Case Summary

Japan Canada Oil Sands Limited (“JACOS”), as owner, and Toyo Engineering Canada Ltd (“Toyo”), as contractor, were parties to an engineering, procurement, and construction agreement (the “EPC Agreement”). A number of disputes arose in connection with the EPC Agreement, which eventually resulted in both parties initiating arbitrations (the “Arbitrations”). One of the Arbitrations was domestic while the other was international. The purpose of the Application and Cross-Application (the “Applications”) was to determine which of the two Arbitrations should continue (with the other Arbitration stayed), or whether both should continue in a consolidated form.

The Applications focussed predominantly on the International Commercial Arbitration Act, RSA 2000, c I-5  and the Arbitration Act, RSA 2000, c A-43  (collectively, the “Acts”). As a preliminary matter, Justice Romaine addressed the issue of two specific affidavits (the “Affidavits”). Justice Romaine noted that the Affidavits indicated that the legal assistants who swore the Affidavits had personal knowledge of the matters deposed to except where otherwise stated to be based on information and belief. The Affidavits stated that the affiants were “informed” by counsel to JACOS that certain correspondence and agreements had been sent by JACOS and thus, they served as vehicles for the entry of documentation that, on its face, were not in dispute among the parties.

Toyo, in challenging the validity of the Affidavits, relied on Rule 13.18(3), which states that if an Affidavit is used in support of an Application that may dispose of all or part of a claim, the Affidavit must be sworn on the basis of the personal knowledge of the person swearing the Affidavit. Toyo noted that Rule 13.18 incorporates the principle that an Application for a final determination of a party’s rights cannot be supported by hearsay. Toyo submitted that Rule 13.18(3) should be applicable as the Applications sought a final determination of rights respecting the arbitral proceedings agreed to by the parties.

Romaine J. disagreed with Toyo’s argument and determined that the Applications did not qualify as applications “disposing of all or part of a claim”. Her Ladyship found that the Applications sought procedural direction from the Court and did not seek a determination on the Claims or any substantive rights therein. Justice Romaine concluded that, after an extensive review of the relevant provisions of and jurisprudence interpreting the Acts, the Arbitrations should be consolidated and should proceed as an international arbitration governed by the UNCITRAL Rules.

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