3.13: Questioning on affidavit and questioning witnesses
3.68: Court options to deal with significant deficiencies
6.20: Form of questioning and transcript

Case Summary

The Court in this decision addressed an Application of a condominium owner requesting that portions of the Respondent condominium board’s Affidavit evidence be struck, pursuant to Rule 3.68. The Court expressed the view that Applications to strike Affidavit evidence often constitute a poor use of the Court’s time, as objectionable Affidavit evidence is typically disregarded in any event. Moving to the Application’s substance, the Court held that much of the impugned Affidavit evidence amounted to permissible evidence that had arguably been infused with value judgments through the inclusion of descriptive language. To the extent that such language was the sole issue, the Court refused to strike. Other passages, which spoke to the Affiants’ emotional response to, or perspective on, a particular behaviour were also maintained. Some passages, however, were struck on the basis of hearsay and irrelevance.

The Court also addressed the Applicant’s request that it draw an adverse inference against the condominium board based on its failure to tender evidence from the condominium board’s president. In refusing to draw such an inference, the Court noted that it had been open to the Applicant to cross-examine the condominium board’s president, pursuant to Rules 3.13(4) and 6.20(2). The Court held that this, among other reasons, militated against drawing an adverse inference.

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