KORNIYENKO v OTTENBREIT ET AL

The Applicant sued members of the Edmonton Police Service and others for alleged breaches of the Charter arising from a criminal investigation. A Rule 7.3 Summary Judgment Application was set for October 28, 2025. In advance of that hearing, the Applicant brought an Application to Strike portions of three responding Affidavits sworn by police officers as inadmissible, citing hearsay (including double hearsay), unqualified opinion, legal conclusions, and irrelevance. In the alternative, the Applicant asked that any impugned passages be given no weight at the merits hearing.

The Court emphasized that summary disposition requires assessing whether there is a genuine issue for Trial on the whole record, and that this assessment necessarily includes screening for inadmissible material while avoiding inefficient, piecemeal evidentiary rulings that could fragment the record.

On affidavit form and hearsay, Mandziuk J. applied Rule 13.18(3) flexibly in the Summary Judgment context. Although the text refers to affidavits “used in support of” a dispositive application, the Court treated both Applicants and Respondents under a pragmatic approach that permits hearsay where it would be admissible at trial, either under a traditional or principled exception, and where reliability can be addressed through weight. Corporate and institutional affiants may rely on records and information reasonably available to them. Justice Mandziuk noted that an affiant’s adoption of a statement can render the content the affiant’s own evidence by operation of the admissions exception, with ultimate weight reserved for the merits judge.

On records, the Court recognized the common law business records exception. Police operational records prepared contemporaneously in the ordinary course are generally admissible if properly authenticated. The presence of multiple layers of hearsay inside such records tends to go to weight rather than baseline admissibility, but third-party narratives, speculative opinions, and irrelevant matter may still be ignored or given no weight at the merits stage.

On opinion evidence, the Court distinguished between impermissible legal conclusions and permissible explanations by witnesses with relevant expertise involved in the events. Litigants or actors with expertise who participated in the underlying events may give opinion evidence confined to what they did and why, without the formalities required for independent experts. Statements by police about their understanding of legal constraints were treated as going to state of mind and grounds for action rather than as binding legal opinions, with weight to be assessed later.

Applying these principles, the Court declined to strike the impugned passages in advance. Most objections were better addressed as questions of weight, reliability, and relevance at the Rule 7.3 hearing.