hall j

13.18: Types of affidavit

Case Summary

The Representative Plaintiff applied to certify a proposed Class Action against the Defendants alleging that Western Hockey League players were employees who should have been paid according to applicable employment standards legislation. The Defendants applied to strike an Affidavit and an Expert’s Declaration, as well as various paragraphs contained in the Affidavits tendered by the Plaintiff in support of the Certification Application.

The Defendants objected to one of the Affidavits on the basis that the Affiant provided unacceptable opinion evidence, although she was not an Expert, and that her Affidavit contained inadmissible hearsay evidence. The Representative Plaintiff argued in response that under Rule 13.18, Affidavits in support of an interlocutory Motion may be based upon information and belief. Justice Hall considered the parties’ arguments, and struck the majority of the paragraphs contained in the Affidavit as they were inadmissible and argumentative.

With respect to a declaration by the Representative Plaintiff’s expert, Justice Hall stated that, despite the Defendants’ arguments that the declaration was inadmissible because Rule 13.18 requires the source of the information be disclosed when an Affidavit is based on information and belief, Experts are allowed to use their judgment and to rely on a variety of sources to reach their conclusions. Further, the Expert and Representative Plaintiff did not assert that the contents of the declaration were tendered for the truth of their contents. As a consequence, the declaration was not struck.

Hall J. considered the remaining impugned Affidavits and held that the contested statements and exhibits were simply proof of the existence of evidence. The Affidavits were not struck.

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