Motion to Strike - Re: An Affidavit

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1196303 Ontario Inc. v. Glen Grove Suites Inc., 2012 ONSC 758 (CanLII)

[12] As a general rule the proper time and place to request a court to strike out, in whole or in part, an affidavit filed in support of a motion or application is on the return of the main motion or application. I reach this conclusion for two reasons.

[13] First, issues of the admissibility of evidence or the weight to be given to evidence on a motion or application fall for determination by the judge hearing the motion or application. When one party seeks to determine legal rights relying only on a written record, such as those used on motions or applications, the hearing judge must act as the “gate-keeper” on issues of competency and admissibility that arise from the written record in the same manner as he or she would when sitting as a trial judge. Competency is a threshold issue in respect of the receipt of the evidence of a witness. As to any consideration of admissibility in light of other principles of evidence, where, as in this case, one party relies on the principled exception to the hearsay rule in support of the admissibility of an affidavit, the hearing judge may be required to take into account a variety of factors, possibly considering other evidence filed on the motion or application, to determine the issue of admissibility.

[17] Which brings me to the second reason for stating that the proper time and place to bring a motion to strike out an affidavit is on the return of the main motion or application. It remains a fundamental objective of Ontario’s civil litigation system to secure the most expeditious and least expensive determination of every civil proceeding on its merits. Unnecessary interlocutory motions stand as a major impediment to securing that objective. At the same time judicial resources in this Court are scarce, so limited judicial time should be used, as much as possible, to determine the merits of a matter, not to put out unnecessary interlocutory brush fires.

Lee et al. v. Aim Health Group Ltd. et al., 2011 ONSC 13 (CanLII)

[41] The case law suggests that the courts are reluctant to interfere with evidence on a motion in advance of the hearing. The preferred route is generally to leave it to the judge hearing the main motion to sort out what he or she will accept and what weight to attribute to it, barring extreme situations.

[42] Thus, in Anderson v. Hunking 2010 ONSC 551, Maser Glustein refused to strike portions of an affidavit in advance of a motion. He relied on the Divisional Court’s decision in E.T.F.O. v. Ontario (Minister of Labour) [2008] O.J. No. 662, where the motion to strike evidence was based on the assertion that it:

• was irrelevant;

• constituted legal argument; and that

• it was opinion.

[43] In E.F.T.O.¸the court held:

The full panel [hearing the applications for judicial review] will probably be in a better position that I am to deal with the issues relating to hearsay evidence, inflammatory expressions, improper opinion evidence, legal arguments and conclusions. The affidavits ought not to be struck.

[44] The Master also referred to Gray J.’s decision in Mason v. Chem-Trend Ltd. Partnership, 2009 CarswellOnt 7895, where a motion to strike portions of an affidavit was dismissed, though it was alleged that the evidence submitted was “irrelevant, argumentative, offensive and contrary to the rule that required an affidavit to be confined to personal knowledge except where the source of the deponent’s belief is stated.” As Gray J. stated:

The application judge will be in a better position than I am to separate the wheat from the chaff in terms of the affidavit material, and will undoubtedly discount or ignore material that is argumentative or otherwise improper.