LIBERTY LAND CORPORATION v KINNEAR

The Plaintiff alleged that the Defendant, a real estate agent, disclosed confidential information about the Plaintiff’s maximum purchase price to the sellers in breach of his obligations. In 2022 the Plaintiff’s claim was summarily dismissed after an Applications Judge held there was no genuine issue for trial because the claims were based on inadmissible hearsay evidence (the “Applications Judge Decision”).

The Plaintiff appealed the Applications Judge Decision arguing that the hearsay evidence created credibility and other triable issues. The Plaintiff presented new evidence on Appeal, including new evidence obtained from a witness pursuant to Rule 6.8. In interpreting Rule 6.8, the Court held that the Rule is designed to assist parties with putting their “best foot forward”. The Court acknowledged that the threshold for admitting new evidence on appeal is low. Pursuant to Rule 6.14(3) such evidence must be “relevant and material”.

In assessing whether the Appeal should be permitted, the Court considered the Applications Judge Decision. The Defendant’s Summary Dismissal Application was brought pursuant to Rule 7.3(1)(b). The Defendants had the onus of proving there was no genuine issue for trial. On Appeal, however, the burden shifted to the Appellant to show that after considering the new evidence the Applications Judge Decision was not correct.

Justice Reed held that the Applications Judge misstated the law by saying that the law had evolved toward the exclusion of hearsay evidence on summary judgement applications. The Court acknowledged that, pursuant to Rule 13.18(3), affidavits should generally be based on personal knowledge. However, sometimes, evidence that is not based on personal knowledge can be admitted. Where a respondent seeks to rely on hearsay evidence, they must show that such evidence would be admissible at trial, either under a known hearsay exception, the principled approach to the admission of hearsay evidence, or for some other reason pursuant to the Rules.

On Appeal, Reed J. addressed each type of hearsay evidence the Plaintiff sought to admit. Ultimately, the Appeal was allowed, and the case was remitted to Trial. The Court acknowledged that the Plaintiff was presumptively entitled to costs pursuant to Rule 10.29.