Motion to Strike - Re: An Affidavit

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.