GOVERNORS OF THE UNIVERSITY OF ALBERTA v ALBERTA (MINISTER OF JUSTICE), 2026 ABKB 562

The Governors of the University of Alberta, as sole trustee of a charitable endowment, applied for permission to terminate the trust and return the trust property to the settlor. Before deciding the Application pursuant to the Trustee Act, SA 2022, c T-8 (the “Trustee Act”), the Court addressed objections to Affidavit and expert evidence filed by both sides.

Pursuant to Rule 3.8(2) an affidavit filed in support of an originating application must contain only facts within the deponent's personal knowledge or evidence that the deponent could give at trial. The University attached more than 75 public statements, media articles and social media posts to an Affidavit to show the context that informed its termination decision. Yungwirth J. held that the exhibits were not hearsay because the University did not rely on them for the truth of their contents. They were admissible to establish narrative and context, and their probative value outweighed any prejudicial effect.

Pursuant to Rule 3.14(1)(a), the Court may consider expert evidence by affidavit on an originating application if the evidence was otherwise admissible. Applying the threshold requirements of relevance, necessity, the absence of an exclusionary rule, and special expertise, together with the Court's gatekeeping role, Justice Yungwirth excluded a proposed historical expert report. The report did not assist with the issues on the Application and the proposed expert was not qualified to opine on the subjective beliefs or conduct of a particular individual.

Rule 3.68(4)(a) permitted the Court to strike all or part of an affidavit containing frivolous, irrelevant or improper information. The Court confirmed that affidavit evidence must be necessary, reliable, relevant and material, and that its probative value must outweigh its prejudicial effect. Affidavits must contain facts rather than legal argument or unsupported conclusions. Lay opinion is admissible only where it communicates relevant observations and the witness has the experiential capacity to draw the conclusion.

Applying Rule 3.68(4)(a), the Court admitted evidence about the creation and objectives of the trust. It excluded evidence about the University's treatment of other endowments as irrelevant, as well as other speculative and unsupported statements. The Court similarly excluded portions of the other Affidavits that contained hearsay, irrelevant historical material, opinion or legal argument.

The Court rejected the submission that the University's failure to cross-examine certain witnesses prevented it from challenging admissibility. The rule in Browne v Dunn (1893), 6 R. 67 (H.L.) applies where a party seeks to impeach or contradict a witness on credibility. It does not prevent a party from challenging evidence that is inadmissible on its face. Nor does a failure to cross-examine require the Court to accept the evidence.

The Court emphasized that it must perform an active gatekeeping function. It is improper to admit inadmissible evidence merely for expediency and then address its deficiencies by assigning it less weight. After resolving the evidentiary objections, Yungwirth J. held that the Trustee Act permitted the termination of charitable trusts, approved the termination and the return of the trust property, and found that the University's premature return of the property was a de minimis breach of trust without a remedy.