Striking an Affidavit: an Affidavit Containing Clearly Irrelevant and Scandalous Material

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

[10]  This rule gives the court broad discretion to “strike out or expunge” all or part of any court document which is sufficiently improper to engage the rule. While most commonly used for pleadings, there is no doubt that the rule may also be used to strike an affidavit because an affidavit falls within the definition of “other document”.^[3]  The pertinent question is whether it is appropriate to exercise this jurisdiction in the circumstances before the court.

[11]  Notwithstanding that the rule may be applied to different types of documents, striking an affidavit is different from striking a pleading.  Different purposes are served by pleadings and affidavits and different rules apply.  Specifically affidavits are the evidentiary record for use on a motion or an application and striking the affidavit or portions of it in advance of the main hearing is a narrowing or pruning of the evidentiary record.  Moreover different rules apply to interlocutory motions than apply to summary judgment motions, applications under rule 14 or applications for judicial review.  Thus each situation must be considered in context.^[4]

[12]  There is conflicting case law concerning whether it is appropriate to strike an affidavit on a preliminary motion or whether the evidentiary issues should be left to the judge or master presiding at the main hearing.  I was referred to Lockridge v. Director, Ministry of the Environment^[5] in which Harvison Young J. enunciated the competing principles as follows.  On the one hand courts are generally reluctant to deal with issues of admissibility and relevance in advance of the hearing on the merits and the court must take care not to usurp the role of the court that will consider the merits.  On the other hand defining the record appropriately in advance of the hearing enhances the ability of the court to focus on the merits.^[6]

[13]  The latter principle has enhanced importance in applications, applications for judicial review and perhaps in class proceeding certification motions.  The importance of those hearings, the length and complexity of those hearings and concerns for judicial economy suggest that limiting the record by excluding evidence that is clearly improper and inadmissible in advance may be appropriate and desirable.^[7]  In the case of judicial review or of applications under Rule 14, the proper scope of affidavit evidence is more narrowly circumscribed than is the case on interlocutory motions.^[8]

[14]  For interlocutory motions, evidence based on information and belief is specifically made admissible. Rule 39.01 (4) provides that the affidavit may contain statements of the deponent’s information and belief if the source of the information and the fact of the belief are specified in the affidavit. Evidently this permits both hearsay and opinion evidence that might not be admissible at a trial though of course this does not guarantee the motions judge or master will give that evidence much weight.  Opinion evidence tendered as expert evidence on a motion is treated separately under Rule 39.01 (7).

[15]  In 876502 Ontario Inc. et. al. v. Propco Holdings, Dambrot J. held that the rule does not contemplate that a master should review in advance affidavits filed on a motion which will be argued later before an undetermined master or judge and make evidentiary rulings on admissibility or relevance.^[9]  It is also clear that while identification of the source of information and belief in an affidavit is a precondition to admissibility, it is an error to approach that requirement in an overly rigid fashion.^[10]  The rule is not designed to require a formulaic recital and it may be sufficient if the source of the information and belief is obvious if the affidavit is read generously.  For example a general recital that the witness is familiar with the sequence of events from reading the file or reviewing correspondence may not have to be repeated in each paragraph. If the exhibits to the affidavit clearly support the evidence of the deponent and appear to be the source of the belief that may also suffice.

[16]  In Neighbourhoods of Windfields, D.S. Ferguson J. accepted what he described as the general view “that evidence should not be struck on an interlocutory motion unless there is some special reason to do so.”^[11]  I adopt this statement of the law. He identified four rationales for this approach which may be summarized as follows:

a)  Granting such a preliminary motion will encourage more such motions and contribute to cost and delay;

b)  It is unnecessary to make such rulings in advance because the motions judge will be in an equally good or better position to determine admissibility;

c) Judges frequently learn of and disregard inadmissible evidence and are presumed not to take it into account; and,

d)  The judge hearing the merits can sanction any inappropriate introduction of evidence by disregarding it and awarding costs.

[27]  As appears from the above rules, the Rules of Civil Procedure permit hearsay evidence for motions. An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit. A statement in an affidavit that: (a) does not state the source of the affiant’s information; or (b) contains inadmissible hearsay, legal and factual argument belonging in the factum, inflammatory rhetoric, or offensive allegations made for the purposes of prejudicing another party may be struck out in whole or in part.^[2] Similar to the court’s jurisdiction to strike paragraphs in pleadings, or documents filed on an application, the court may strike out paragraphs in an affidavit that are frivolous, scandalous, or vexatious or that may prejudice or delay the fair hearing of a motion.^[3] Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out.^[4]

[28]  Typically, a motion to strike paragraphs from an affidavit is made at the same time as the primary motion. The general and prevalent rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be determined only in the clearest cases.^[5] In 1196303 Ontario Inc. v. Glen Grove Suites Inc.,^[6] Justice D.M. Brown, as he then was, said that the proper time to strike an affidavit was at the hearing of the motion or application and that a pre-emptive motion should only be brought in the rarest and most extraordinary cases. In Jacob v. Playa El Agua Development Limited Partnership,^[7] Master MacLeod, as he then was, stated that it only in extraordinary cases would a preliminary motion be appropriate.

[29]  In; Neighbourhoods of Windfields Limited Partnership v. Death,^[8] Justice D.S. Ferguson said that evidence should not be struck on an interlocutory motion unless there is some special reason to do so. One special reason might be where the affidavit is clearly improper and would inevitably give rise to extraordinary cost or difficulty for the opposing party.^[9] Another special reason arises when the affidavit contains clearly irrelevant and scandalous material that impugns the character of a party.^[10]

[30]  In Neighbourhoods of Windfields Limited Partnership v. Death, Justice Ferguson reasoned that pre-emptive motions to strike affidavits were not productive because: (a) granting such a preliminary motion will encourage more such motions and contribute to cost and delay; (b) the motions are unnecessary because the motions judge will be in an equally good or better position to determine admissibility; (c) judges, including motions judges, know how to disregard inadmissible evidence and not have it influence their judgment; and, (d) the motions judge can sanction any inappropriate introduction of evidence by disregarding it and awarding costs.

[31]  In Anderson v. Hunking,^[11] Master Glustein, as he then was, stated:

9. In a trial, a judge hears all evidence and decides if it is inadmissible, whether as hearsay, improper opinion, or irrelevant, scandalous, or vexatious. There is no preliminary vetting by another court to determine relevance. In a motion or application, evidence is to be by affidavit. There is no distinction in principle supporting the view that on a motion or application, another court should take a preliminary view of the evidence and decide its admissibility (except if there is a rare situation when the very disclosure of the evidence before the court hearing the substantive motion could result in significant prejudice, such as disclosing privileged information or settlement discussions).

10. Courts hearing substantive motions are well capable of determining which statements in an affidavit are hearsay, legal opinion, irrelevant, or inflammatory. Further, it is for the court hearing the substantive motion or application to consider the evidence it seeks to rely upon, and evidence which may be relevant to the trier of fact on the motion or application should not generally be vetted in a preliminary hearing prior to the substantive hearing.

[32]  However, in Holder v. Wray,^[12] Justice Emery said that whether the motion to strike is appropriately made before the hearing of the motion is a matter that must be considered on a case-by-case basis.^[13] Thus, there are cases, in which courts on a pre-emptive motion have struck affidavits before the hearing of the motion on the basis that: (a) the deponent failed to state the source of the information;^[14] (b) the deponent raised legal arguments;^[15] or (c) the deponent made allegations that were scandalous, frivolous, or vexatious.^[16] In Holder v. Wray,^[17] Justice Emery adopted a hybrid approach and struck some offending paragraphs from the affidavits but deferred a decision about other impugned paragraphs to the judge hearing the motion. This hybrid approach was also adopted by Justice Harvison Young, as she then was, in Lockridge v. Ontario (Director, Ministry of the Environment).^[18]

[33]  In Allianz Global Risks US Insurance Co. v. Canada (Attorney General),^[19] then Master MacLeod, who, it may be recalled, favoured the approach of discouraging pre-emptive motions to strike stated:

19. In summary, with respect to interlocutory motions for production of documents, a preliminary motion will generally not be the preferable approach. Any issues of admissibility, relevance or weight should generally be dealt with by the judicial officer hearing the main motion. Rule 25.11 may be appropriate to deal with clearly scandalous or improper affidavit material or with abuse of process where it can be demonstrated that it is more efficient to deal with the record in advance than it will be to complicate the hearing of the main motion and leave the parties uncertain as to whether or not they must respond to the improper material.

[34]  In Holder v. Wray,^[20] Justice Emery said:

40. An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation. The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary. Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances. One "special reason" to make such an order in advance of the main hearing would be where the affidavit at issue is "clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party." See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death, 2007 CanLII 31756.

[35]  By way of my own summary, in the majority of cases, rather than a pre-emptive motion to strike affidavits in whole or in part for non-compliance with the Rules of Civil Procedure, it is preferable that the judge or master hearing the substantive motion rule on the admissibility of the evidence. However, there is no absolute rule, and a pre-emptive motion may be appropriate where either efficiency or fairness require that disputes about the factual record be determined before the substantive motion. On a case-by-case basis, it will be for the judge or master hearing the pre-emptive motion to decide whether to strike the impugned material or to defer the issues of admissibility to the judge or master hearing the substantive motion.