This was an Application brought pursuant to Rule 3.68(4), to strike parts of two Affidavits (“Application to Strike”), both of which had been filed in the context of an Application to extend a Queen’s Bench Protection Order (“Application to Extend”).

Mr. Matta was the Defendant, Applicant in the Application to Strike, and Respondent in the Application to Extend. The Plaintiff, Ms. Matta, was the Respondent in the Application to Strike and Applicant in the Application to Extend.

Contrary to the requirements set out in Rules 6.3, 12.43 and 12.44, Mr. Matta failed to provide notice of the Application to Strike; he did not serve a filed Application and accompanying Affidavit. Instead, he informally communicated to Ms. Matta’s Counsel a general objection to certain Exhibits and sought to strike portions of the Affidavits during the course of oral argument in respect of the Application to Extend. Ms. Matta objected to the Application to Strike on the basis that she had not received any, or any proper, notice of the Application or the grounds on which it was based.

After surveying case law considering Rule 6.3, which lays out service requirements, the Court concluded that Mr. Matta’s Application should fail on the basis of non-compliance with that Rule.

Noting Mr. Matta’s failure to give adequate notice notwithstanding that he had had several months to voice his objections, the Court further held that the Application to Strike should be dismissed, pursuant to Rule 1.5(2), which requires that an Application to set aside based on a Rule contravention be brought within a reasonable time. The Court held that Mr. Matta’s informal objection to certain Exhibits did not constitute adequate notice of the Application to Strike, as the objection did not comply with the Rules, was far narrower than the complaints later raised, and failed to convey information necessary for Ms. Matta to prepare a meaningful response.

Notwithstanding these conclusions, the Court went on to consider the Application to Strike, pursuant to Rule 6.12(c), which allows the Court to decide an Application even if the Respondent had not been served. Ultimately, the Court held that, while it was appropriate for both the Application to Extend and the Application to Strike be heard by the same Judge - who would be well-positioned to consider issues such as admissibility and weight - adequate notice remained a necessity, particularly in light of the short time allocated for hearing of the Application to Extend. Accordingly, the Court refused to grant the Application to Strike and invited Mr. Matta to file and serve a proper Application and accompanying Affidavit in advance of the now-adjourned Application to Extend - to be heard in conjunction with the Application to Extend.