master schulz

5.5: When affidavit of records must be served
7.3: Summary Judgment (Application and decision)
8.17: Proving facts
13.18: Types of affidavit

Case Summary

The Plaintiff, the Schmitz Estate, commenced an Action related to a dispute about a Share Purchase Agreement and two Promissory Notes. The Plaintiff applied for Summary Judgment of its Claim.

Several evidentiary issues arose due to the deaths of three key individuals in the case. Master Schulz noted that pursuant to Rule 8.17(3) the Plaintiff gave proper notice that it would be relying on a Probate Application in order to prove the date of death of one individual. Master Schulz granted leave to rely on the probate Application document.

Regarding the admission of hearsay evidence, counsel for some of the Defendants argued that under Rules 7.3 and 13.18, evidence before the Court on a final Application must be based on personal knowledge; as a consequence, hearsay evidence may not be used, even if it falls under an exception to the hearsay rule. Master Schulz reviewed leading authorities and held that affidavit evidence falling under an applicable hearsay rule is allowed if it meets the test for admissibility. Master Schulz therefore assessed admissibility using the “principled approach”, under which hearsay evidence may be admitted if it meets a threshold level of necessity and reliability.

Concerning reliability of various documents, Master Schulz noted that Rule 5.15 deems documents listed in an Affidavit of Records to be “authentic”, in other words:

…the documents are deemed to be printed, written, signed or executed as purported, an original is an original and a copy is a true copy. Parties are presumed to admit that a record referenced in the Affidavit of Records is authentic unless an objection is made within 3 months after the date on which the records are produced. Rule 5.15 does not apply if the pleadings deny receipt, transmission or authenticity of the document.

Since there was no objection, or denial of receipt or authenticity of the documents made within 3 months of production, the documents were deemed to be signed as they were purported to be signed. After a consideration of whether some documents contained admissions against pecuniary interest made by parties adverse in interest, and whether the probative value of admitting the evidence outweighed its prejudicial effect, Master Schulz admitted the second set of documents for the truth of their contents.

The Defendants argued that the Application for Summary Judgment was brought prematurely, as it was brought prior to Questioning. Master Schulz rejected this argument, noting that there is no need for all pre-Trial steps to be exhausted prior to an Application for Summary Judgment. Master Schulz also observed that Rule 7.3 “specifically allow[s] for a summary disposition of liability with quantum to be determined at a future date if necessary”. Based on the admitted documents, Master Schulz held that the Plaintiff had proved each element of liability. The Court granted Summary Judgment on the basis that, “the moving Party is entitled to summary judgment if … it presents uncontroverted facts and law which entitle it to Judgment against the non-moving Party” or if the non-moving Party’s position is without merit.

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