PRACTICE |
Affidavits |
Canadian Tire Corp. v. P.S. Partsource Inc.
A-434-00
2001 FCA 8, Malone J.A.
8/2/01
8 pp.
Appeal from Trial Division decision ([2000] F.C.J. No. 879 (QL)) dismissing appeal from order of Prothonotary dismissing appellant's motion to strike out paragraph 9 in affidavit filed on behalf of respondent on ground not based on personal knowledge--R. 81 requiring that, except on motions, affidavits be confined to facts within personal knowledge of deponent--Rule reflecting general rule of evidence relating to hearsay--On face, facts in paragraph 9 not stated to be facts of which deponent had firsthand knowledge--Even if paragraph 9 limited to attempt to establish statements made, still hearsay where not clearly established deponent personally received telephone calls--Obvious attempt to demonstrate actual confusion on part of callers--Evidence clearly hearsay--R. 81(1) rule of practice, procedure in Court, reflecting general rule against hearsay--Words of paragraph 9 showing evidence hearsay--Clearly proferred for truth--No suggestion necessity, reliability exception applies--Case in which, prior to hearing, appropriate to strike offending paragraph--Motions to strike affidavits justified only in exceptional cases where prejudice demonstrated, evidence obviously irrelevant--In case of motions to strike based on hearsay, motion should only be brought where hearsay goes to controversial issue, can be clearly shown, where prejudice by leaving matter for disposition at trial can be demonstrated--Appeal allowed--Federal Court Rules, 1998, SOR/98-106, r. 81.