7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Applicant applied for Summary Judgment pursuant to Rule 7.3 to void the residual gift under the will in question because he believed the Respondent had caused the testator’s death. The Application relied on, among other things, an alleged confession by the Respondent to the RCMP (the “Confession”) and a criminal charge against the Respondent set out in an Affidavit.

The Court set out the prevailing principles for Summary Judgment and then reviewed the types of information that may be included in an Affidavit under Rule 13.18, noting that if an Application may “dispose of all or part of a claim”, it cannot include hearsay evidence and must be sworn on the basis of the personal knowledge of the Affiant. The Court further noted that (1) hearsay cannot be used to support a final determination unless the evidence would be admissible at Trial through an exception to the hearsay rule to prove the truth of the contents of the statement, and that (2) Rule 13.18(3) should not be read as an absolute bar for the use of hearsay evidence, with a key consideration being whether the underlying source of information is reliable and would be admissible at Trial.

The Court found that the Summary Judgment Application was a final determination of the Applicant’s claim which required personal knowledge, that had not been discharged.

The Court more specifically found that (1) no exception to the hearsay rule was applicable; (2) the sparse evidentiary record did not demonstrate that the information was sufficiently reliable and would be admissible at a Trial; and (3) even if the hearsay was admissible for the Application, the Affidavit would need to identify the underlying source of the information and belief. The Court additionally noted the circumstances of the Confession could not be properly determined and that the Confession was also imprecise.

The Court accordingly dismissed the Application, noting that the Applicant did not meet the evidentiary burden but did note that a summary determination could be possible if the Respondent had been convicted of a crime.

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