Three Applications were brought in Case Management: (i) by the Defendant to strike certain evidence of the Plaintiff (“Application to Strike”), (ii) by the Plaintiff to compel production of a letter from the Defendant’s counsel to Mah J. along with a withheld document (“Application to Compel Production”), and (iii) by the Defendant to compel a refused undertaking by the Plaintiff (“Application to Compel Undertaking”).

Application to Strike

The Application to Strike sought to strike three parts of the Plaintiff’s evidence: an Affidavit, Third-Party evidence, and an Exhibit to the Plaintiff’s Affidavit.

The Court reviewed Rule 3.68, which permits the striking of all or part of an Affidavit that includes frivolous, irrelevant, or improper content. The Court noted that Affidavits should present essential facts without arguments or opinions, leaving conclusions to the Court. Although the Plaintiff’s Affidavit included opinions and arguments, the Court chose not to strike any paragraphs at this stage, opting instead to evaluate the relevance of the content at an upcoming Summary Dismissal Application. The Court was cautious about striking evidence before assessing the sufficiency of the record and the existence of genuine trial issues, reserving its judgment for the Summary Dismissal Application.

Regarding the Third-Party evidence, the Defendant attempted to introduce a transcript from a witness, SD, a guarantor like himself, to support his claims. SD's testimony focused on the individuals present during the execution and notarization of the joint guarantee. The Plaintiff argued for its exclusion due to inaccuracies, coercion, and procedural failures. The Court noted that SD's examination occurred without legal counsel and referenced Rule 6.8, which requires notice to all parties and allows for questioning by others.

The Court noted that Rule 6.16(2)(b) directs the service of a Notice of Appointment on each of the other parties. Rule 6.20(1) provides that a person questioned on an Affidavit may also be questioned by any other party during the same Questioning. While the latter rule is permissive, the discretion is to be exercised by the “other party”. In this case, the Plaintiff and his counsel were unaware of the examination and could not question SD, undermining the intended operation of the Rules. Additionally, SD's questioning in Halifax raised concerns under Rule 6.22 regarding evidence obtained from outside Alberta. Ultimately, the Court found SD's evidence to have minimal probative value and struck his transcript from the record.

The Court then considered Rule 5.16 to determine whether the Exhibit to the Defendant’s Affidavit should be excluded due to nondisclosure in the Affidavit of Records. The Court reviewed the relevant jurisprudence regarding its discretion to admit a record not disclosed in an Affidavit of Records, and noted that Rule 5.16 is premised on the omitting party (now seeking to adduce it) convincing the Court that there is a sufficient reason for the omission. In this instance, however, no justification was provided, nor an Application to introduce the record submitted, resulting in the record being inadmissible as evidence in the Action.

Application to Compel Production

The Application to Compel Production related to production of a letter and the other document that Mah J. previously determined to be irrelevant in an earlier ruling. The Defendant contended that the letter was essential to mitigate a reasonable fear of prejudice. However, Mah J. remarked that the basis for any potential prejudice remains unclear, as he had neither seen nor reviewed the letter.

Justice Mah had already addressed the matter concerning the production of the "other" document, and that ruling was not contested. The Defendant maintained that he could not assess relevance until he had the opportunity to view the document; however, the Court pointed out that allowing access to the document for the Defendant and his counsel would compromise the very privacy that the Plaintiff aimed to protect. Rule 5.11 is designed for inspection by the Court, rather than the opposing party. Consequently, Mah J. dismissed this Application.

The Court did not rule on the Application to Compel Undertaking, as it had become irrelevant following the prior findings.