The Plaintiffs, consisting in part of an individual member to a local union, Luke Theriault, challenged certain amendments made to trust agreements governing pensions and health benefits. Numerous Affidavits were filed in the Action prior to the Plaintiffs’ Application for Summary Judgment. After cross-examination on those Affidavits but prior to the Summary Judgment hearing, the Defendants’ counsel believed that the transcript of Luke Theriault should not be filed, pursuant to Rule 5.32. Justice Dunlop disagreed, writing that “[t]hat rule applies to questioning under Part 1, Division 5 of the Rules. Mr. Theriault was questioned under Part 6 of the Rules which requires the questioning party to file the transcript: Rule 6.7(b) and 6.20(5)(b)”.

The Defendants also took the position that there was hearsay in some of the Affidavits, including Luke Theriault’s, which, they argued, was inadmissible in support of the Application because the Plaintiffs were seeking final relief. Dunlop J. generally agreed, citing Rule 13.18(3), which provides that “[i]f an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit.” However, Justice Dunlop noted that the trust agreements attached as exhibits to Luke Theriault’s Affidavit were not hearsay, as argued by the Defendants. They were “original evidence”, which the Defendants admitted as authentic to the Court in a prior hearing. Citing Rules 7.1 and 7.2, Dunlop J. found “[a]dmissions and evidence other than affidavits are admissible on an application for summary judgment”.

Dunlop J. granted the Plaintiffs’ Application in part.