PRACTICE |
Affidavits |
Express File, Inc. v. HRB Royalty, Inc.
T-241-02
2003 FC 924, Martineau J.
28/7/03
9 pp.
Appeal from Prothonotary's order striking out portion of affidavit as constituting hearsay (reference to CBC television program "The National" segment on Canadian residents working in the United States or for U.S. companies and paying U.S. income tax); dismissing applicant's counter motion to file second affidavit detailing attempts, efforts by applicant to obtain better evidence--Appeal dismissed-- Applicant has failed to establish impugned order clearly wrong--Federal Court Rules, 1998, r. 50 providing Prothonotary with jurisdiction to hear motions made by parties --R. 81 requiring that, except on motions, affidavits confined to facts within personal knowledge of deponent, but not necessarily excluding hearsay evidence, provided latter "reasonably necessary", "reliable"--In recent years, Supreme Court of Canada has taken somewhat more flexible approach to hearsay "rooted in principle and policy underlying hearsay rule rather than strictures of traditional exceptions": R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915 (necessity, reliability)--Prothonotary properly asked himself whether or not applicant has demonstrated hearsay evidence contained in paragraphs at issue, exhibits herein reliable, reasonably necessary--Hearsay evidence herein not meeting threshold of reliability, as found by Prothonotary--Although not necessary to examine requirement of necessity, Court not convinced broadcast of documentaries or newspaper articles can be adduced in court proceedings in order to prove truth of their contents, simply because litigant encountering difficulties in collecting first-hand evidence from reliable sources, governmental or otherwise--Would be unwarranted extension of recognized exceptions to inadmissibility of hearsay evidence--As to actual prejudice, Prothonotary properly found respondent could not conduct effective, valid cross-examination here in opposition to allegations, since persons making affidavits could provide no information other than that already contained in affidavits--Prothonotary properly concluded striking out of paragraphs at issue necessary at this stage--Prothonotary did not act prematurely, did not improperly exercise his discretion in allowing motion to strike paragraphs at issue; did not err in dismissing applicant's motion to file second affidavit--Federal Court Rules, 1998, SOR/98-106, rr. 50 (as am. by SOR/2002-417, s. 8), 81.