SERVUS CREDIT UNION LTD v DALMAC ENERGY INC, 2020 ABQB 478
13.18: Types of affidavit
An Application was brought by the Bowra Group, who was the Receiver and Trustee in Bankruptcy (the “Trustee”) of Dalmac Energy Inc. (“Dalmac”), for the Court to determine which party had priority on a 2011 Western Star truck. The truck had been sold to Dalmac in 2018 under written agreement with Jimco Holdings Inc (“Jimco”). At the time of the Application, the truck had been returned to Jimco to extinguish the remainder of Dalmac’s debt under that agreement.
In response to the Application, Jimco filed an Affidavit sworn by its principal, Mr. Rukavina. Mr. Rukavina’s Affidavit appended a statement from Dalmac’s principal, Mr. Babic, as an exhibit. Mr. Babic did not swear his own Affidavit. The Court refused to admit Mr. Babic’s appended statement, as it ran afoul of Rule 13.18(3) which requires Affidavit evidence to be based on personal knowledge, and because it was contrary to rules of evidence on hearsay.
Mr. Rukavina’s Affidavit was subsequently inadmissible as contrary to the parole evidence rule. In light of the written agreement and lack of contrary evidence, Justice Mah granted the Trustee’s application for a declaration that the Trustee had priority to the truck and ordered that Jimco transfer possession and execute any necessary documents to effect the transfer.View CanLII Details