CALGARY (CITY) v ECCO RECYCLING & ENERGY CORPORATION, 2026 ABKB 640

The City of Calgary (the “City”) applied pursuant to s. 554 of the Municipal Government Act, RSA 2000, c M-26 (the “Act”), for a statutory injunction requiring Ecco Recycling & Energy Corporation (“Ecco”) to cease storing waste outside its recycling facility and remove accumulated waste. Ecco cross-applied to strike portions of the City's Affidavit evidence and argued that disputed facts, credibility concerns, and disclosure issues required a Trial rather than determination by Originating Application.

The Respondent applied to strike portions of an Affidavit as inadmissible hearsay. The City relied on the Affidavit in support of an Application for final relief. Rule 13.18 required that the Affidavit only contain information personally known by the affiant, rather than information and belief. The central admissibility issue was whether hearsay information contained in reports prepared by City representatives during their investigation of complaints about Ecco’s site was admissible under the common law business records exception.

Justice Eamon held that, although Rule 13.18(3) generally requires a deponent seeking final relief to swear evidence based on personal knowledge, some flexibility exists for corporate litigants. Relying on Saito v Lester Estate, 2021 ABCA 179, the Court held that a deponent may obtain the requisite personal knowledge through review of relevant and reliable records, provided the underlying information would itself be admissible. The reliability of the source material and the deponent’s proximity to the underlying events and records affect the weight of the evidence. However, a corporate representative cannot circumvent Rule 13.18 by repeating inadmissible hearsay obtained from files or conversations.

Justice Eamon further held that records created during an investigation are not categorically excluded from the common law business records exception. Applying R v Monkhouse, 1987 ABCA 227 (“Monkhouse”), the Court noted that admissibility depends on whether the records constitute an original entry made contemporaneously in the ordinary course of business by a person with personal knowledge and a duty to record, and without a motive to misrepresent. The Court emphasized that the exception is grounded in reliability, not necessity, and that investigative records must be assessed on their particular facts to determine whether those indicia of reliability are present.

The Court excluded much of City’s Affidavit concerning site activities and conditions because the City failed to establish that the affiant’s purported personal knowledge was derived solely from admissible business records. The Court found insufficient evidence regarding the creation of the records, the individuals who gathered the information, and whether the affiant relied on business records rather than inadmissible hearsay. The Court similarly excluded the sketch plans of the waste piles because the Monkhouse reliability factors could not be assessed on the evidentiary record. Portions of the City’s Affidavit interpreting a development permit were also struck as inadmissible opinion evidence.

The Court admitted photographs attached to the City’s Affidavit, finding that they were taken by City personnel, recorded contemporaneously, and maintained in the ordinary course of the City’s operations. Other admissible evidence authenticated the photographs as depicting the Ecco site, and the Court was satisfied there was little risk of error or motive to misrepresent. The Court likewise admitted the affiant’s evidence arising from his personal site visit and observations.

The Court held that the summary procedure was fair, just, and proportionate. The photographs were reliable, Ecco filed no contradictory evidence about property it controlled, and the remaining defences raised legal issues that could be decided on the record. Questioning gave Ecco an opportunity to seek the City records that the affiant consulted, while the ongoing breach favoured prompt determination rather than extensive Part 5 disclosure.

Having ruled on the admissibility of the Affidavit evidence, the Court ultimately found that Ecco was operating contrary to its development permit and granted a permanent injunction under Section 554 of the Act.