MURPHY v CAHILL, 2012 ABQB 793
13.18: Types of affidavit
The Applicant sought to have the Affidavit of Margaret Cahill struck, and the Affidavits of Gerald Cahill and Alice Wilson redacted.
In relation to the Affidavit of Margaret Cahill, the Applicant argued that it should be struck because of the delay and obstruction of Margaret Cahill. The Court held that the striking of a Party’s Affidavit in a contested Application, leaving that party with no evidence, is an extreme measure. The Court held that the evidence did not support a finding of delay and obstruction.
The Applicant argued that the Affidavit of Gerald Cahill contained hearsay and irrelevant and improper opinion evidence. The Court held that hearsay evidence can be used in a response to an Application that may dispose of all or part of a Claim. Rule 13.18 only prevents hearsay evidence in support of an Application that may dispose of all or part of a Claim. Additionally, the common law hearsay exceptions apply to Affidavits used in support of an Application that may dispose of all or part of a Claim. The Applicant’s argument relating to irrelevance focused on evidence regarding credibility. The Court held that the absence of complete Pleadings, as the matter was commenced via Originating Application, made it unwise for a Court to rule precipitatedly on relevance. Additionally, subject to certain exceptions, credibility evidence was relevant. The Court held that the disputed opinion evidence should be dealt with via submissions when the matter was heard, and not via an Application to strike.
In relation to the Affidavit of Alice Wilson, the Court held that the use of the alleged inadmissible opinion evidence, relating to credibility, should be dealt with by the Judge who hears the matter. The Application was dismissed.View CanLII Details