1.7: Interpreting these rules
5.26: Transcript of oral questioning
5.30: Undertakings
5.32: When information may be used
6.11: Evidence at application hearings
6.20: Form of questioning and transcript
6.7: Questioning on affidavit in support, response and reply to application
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiff applied for Summary Judgment in respect of a claim for wrongful dismissal against the Defendant.

Among other issues, the Court considered what constituted a transcript that must be filed pursuant to Rule 6.7. The Court noted that the Defendant filed a Court reporter generated transcript of the Questioning on the Plaintiff’s Affidavit but did not include with it the exhibits that were marked, other records put to the Plaintiff during Questioning but not marked as exhibits, or the Plaintiff’s responses to Undertakings (or attached records) given during the Questioning.

The Court set out Rules: 6.20(5), as it relates to the obligation of the Questioning party to arrange for the Questioning to be recorded and the transcript filed; 6.20(3), as it relates to the requirements of recording of the questions and answers; 6.11(b), as it enables the Court to consider a transcript of Questioning under Part 6 of the Rules in deciding an Application; and Rule 13.46, as it relates to the obligations of the official Court reporter.

The Court noted that although Part 6 of the Rules is silent as to whether exhibits marked by the official Court reporter during a Questioning on an Affidavit under Rule 6.7 are part of the transcript, the principles from Rule 5.26(3) and 5.32 apply by analogy pursuant to Rule 1.7(2). The Court accordingly found that absent agreement of all parties or other Court Order, the questioning party must file with the Questioning transcript any marked exhibits (whether numbered or lettered exhibits for identification).

The Court determined that the documents referenced in a Questioning on an Affidavit but not marked as exhibits do not form party of the transcript unless otherwise agreed or ordered by the Court. The Court noted that the parties are encouraged to reach agreement on the matter as it is a common practise consistent with the expediency and efficiency, which will often be consistent with Rule 1.2. The Court further noted that any such agreement should be put on the record to avoid misunderstanding or disputes and expressly reference the parties’ agreement that those records are to be treated as exhibits to, or otherwise part of, the transcript.

The Court reviewed Rule 5.31 noting that it provided that in certain circumstances, a party may use (read-in) the evidence of the other party under Rule 5.17 and 5.18, but that Part 5 does not specifically address whether Undertaking answers form part of the transcript of Questioning. After noting that there was an issue as to whether Undertaking answers must be questioned upon under Rule 5.30(2) in order for them to form part of the Part 5 Questioning transcript, the Court determined that Undertaking answers form part of the transcript whether or not they are questioned upon. The Court determined that although Rule 5.30 does not technically apply to Questioning under Part 6, it applies by analogy pursuant to Rule 1.7(2), as modified by the jurisprudence which restricts its use in Questioning on an Affidavit. The Court additionally noted that there was no principled basis to differentiate between Part 5 and Part 6 Questioning when determining what forms part of the transcript.

The Court accordingly found that: (1) unless otherwise agreed or ordered by the Court, Undertaking answers form part of the transcript to a Questioning on an Affidavit pursuant to Rule 6.7 and should be filed with the transcript; (2) records produced as part of the Undertaking answers should be filed as part of the transcript where they form an integral part of a substantive factual answer to the question asked, but do not need to be filed where they are only produced in response to an Undertaking request to produce records; and (3) if the questioning party wishes to have records produced pursuant to Undertakings form part of the evidentiary record, they should conduct a follow-up Questioning on the Undertaking answers and associated records. The Court also noted that parties may apply to have Undertaking responses including additional superfluous, inappropriate, or non-responsive information struck from the record by arguing that they should be given little or no weight, or by questioning on them. The Court additionally set out that parties are encouraged to discuss and reach agreement on the contents of the transcript to be filed pursuant to Rule 6.7 wherever possible.

The Court determined that the Plaintiff’s Undertaking responses were to be filed as part of the Plaintiff’s transcript and set out that certain records produced as part of the Undertaking answers that were integral to the answer of a substantive factual question that was asked, were to be included with the filed transcript.

The Court set out Rules 7.3(1)(a) and 7.3(1)(c), noting that they enabled a Plaintiff to apply for Summary Judgment and reviewed the jurisprudence applicable to Summary Judgment. In reviewing the evidentiary tools appropriate to Summary Judgment, the Court set out that Applicant Affidavits should generally be based on personal knowledge with respect to Rule 13.18, but noted that some evidence not based on personal knowledge can be admitted with respect to the application of Rule 13.18(3). The Court further noted that Respondent Affidavits may include hearsay evidence based on information and belief, provided the source of the information is disclosed, with reference to Rules 13.18(1)(b) and 13.18(2).

The Court determined that: the Plaintiff had discharged its threshold burden to provide the factual elements of the case; there was no merit to the Defendant’s just cause defence which resulted in the Court determining that the Defendant had not established a genuine issue requiring a Trial; and it was possible and appropriate to resolve the Plaintiff’s claim summarily. The Court found that the Defendant did not have just cause to terminate the Plaintiff without notice. The Court further found that there was no genuine issue requiring Trial and it was fair to summarily resolve: the Plaintiff’s notice period, the Defendant’s mitigation defence, and the calculation of the Plaintiff’s damages.

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Related to 1.7

Related to 5.26

Related to 5.30

Related to 5.32

Related to 6.7

Related to 6.11

Related to 6.20

Related to 7.3

Related to 13.18