The Plaintiff applied under Rule 3.68(4) to strike all or part of an Affidavit sworn in support of the Defendant’s position for a Summary Trial. The Action related to the Plaintiff’s claim for compensation as a member of a committee tasked with instructing counsel and advancing claims on behalf of the Defendant Indian Band (the “Band”) regarding aboriginal land and legal status claims. The impugned Affidavit was sworn by the lawyer for the Band in the aboriginal land and legal status claims and concerned the lawyer’s opinion regarding the suitability of the matter for determination by way of Summary Trial. The Plaintiff argued that he reasonably believed himself to be the lawyer’s former client and that the lawyer was acting in a conflict of interest and in breach of the duty of loyalty by providing evidence against him. Further, the Plaintiff argued that the Affidavit was frivolous, irrelevant, and improper argument and opinion which should be struck before Trial.

Justice Friesen held that Rule 3.68(4) allows a party to seek an interlocutory or preliminary ruling to strike all or part of an Affidavit, but that the application of the Rule is discretionary. Friesen J. noted that Rule 3.68 was not intended to encourage interlocutory Applications regarding evidentiary exclusions prior to them being heard and assessed by the Trial Judge.

Justice Friesen noted that the impugned Affidavit had been filed nearly two years before the present Application was brought, indicating there was no urgent need to strike the Affidavit prior to the Summary Trial. Justice Friesen held that the questions of admissibility and weighing of evidence raised by the Plaintiff’s Application were best determined by the Trial Judge, who would be in the best position to know the facts of the matter and consider the arguments in the broader context of the Action.

The Plaintiff’s Application was dismissed without prejudice to the Plaintiff’s right to address the issues at the Summary Trial.