On October 20, 2022, lawyers for the Plaintiffs, Jack Kleiman and Kleiman Resources Ltd. (Kleiman), obtained an ex parte Attachment Order (the Attachment Order) against the Defendants, Malcolm Colin Innes and Innes Wealth Management Ltd. (IWM). Kleiman applied to continue the Attachment Order, while the Defendants (collectively, Innes) argued the Attachment Order was obtained improperly and sought to have it set aside. 

The parties did not initially address Rule 9.16 of the Rules of Court, which provides that Applications under Rule 9.15 (setting aside, varying and discharging judgments and Orders) must be decided by the Judge or Applications Judge who granted the original Judgment or Order unless the Court otherwise orders. After a query by the Court, Innes argued that Kleiman erred in not trying to have this matter returned to the original Justice. Kleiman responded that Orders under Section 18 of the Civil Enforcement Act (the CEA) are not “Orders” under Rule 9.15.

Justice Ashcroft found that Rule 9.16 does apply to Orders, even if authorized under the CEA. While a Justice who heard the original Application is in the best position to review the matter with full knowledge of what they were aware of at the time, for reasons of efficiency and expediency, which were particularly important in this Application, leave was granted to have another Justice hear the matter.

During the proceedings, a representative of the Applicant (the Affiant) swore a lengthy Affidavit in support of the ex parte Application for the Attachment Order, containing hearsay and double hearsay. Innes argued that this was prohibited by Rule 3.8(2) of the Rules of Court, which indicates that Affidavits must be sworn on personal belief and knowledge. On this point, however, the Court was persuaded by Kleiman’s argument that Rule 3.8(2) was intended to apply in a hearing on the merits of a matter, not an interim Application. Justice Ashcroft found that hearsay is permitted on interim Applications, citing Heneghaixin Corp v Deng, 2022 ABCA 271 at para 30.

Nevertheless, on ex parte interim Applications, hearsay evidence should be approached with caution. In some circumstances, urgency and efficiency may require all information to come from one affiant. In this case, however, both sides were represented and the parties had been communicating for months.

Justice Ashcroft summarized that lay witnesses must be cautious to limit their evidence to the factual circumstances before them especially on ex parte Applications. Further, while hearsay is permitted on interlocutory Applications, it will be subject to closer scrutiny on ex parte Applications.