Timing of Motion to Strike: Affidavit Concerns and Whether to Strike In Advance or At a Hearing

Timing of Motion to Strike Affidavits

[13]  In Holder v. Wray, 2018 ONSC 6133, Emery J.  reviewed a number of cases dealing with the question of whether a court should hear a motion to strike inadmissible paragraphs from an affidavit in advance of the main application or whether the admissibility of affidavit evidence is a question best left to the court that hears the application.  He concluded, at para. 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.

[14]  Emery J.  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 application.

[15]  In previous cases, I have followed this hybrid approach.  In Hunt v. Stassen, 2019 ONSC 4466, I stated at paras. 10:

Where the motion to strike is based on the relevance of the affidavit evidence it is often preferable to leave the question to the court hearing the application because relevance can often only be assessed in the context of the application as a whole.  The judge who hears the application on its merits is usually best situated to make that determination.

[16]  There are other cases, such as those described by Emery J., where screening inadmissible evidence at a preliminary stage will result in a more efficient use of parties’ and the court’s time and resources.  For example, affidavits often contain inadmissible legal argument, opinions or comments on the legal position of the opposing party. “Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out”: Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, at para. 27.  Permitting such inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs.  None of these options is ideal.  A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.

[17]  If the inadmissible evidence accounts for one or two isolated paragraphs in an affidavit, it may be more efficient to wait and have the issue of admissibility determined by the court hearing the application or motion on its merits.  In cases in which the affidavit is replete with inadmissible paragraphs, it may be fairer and more efficient to have the questions of admissibility determined in advance.

[18]  This hybrid approach has been followed in more recent cases: Humberplex Developments v. Attorney General for Ontario, 2023 ONSC 2962, at paras. 10-14.

[19]  Finally, I adopt the following summary by Perell J.  in Gutierrez, at para. 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.

[20]  In the present case, the impugned paragraphs in Ms. Tran’s Affidavit are not “clearly improper”.  The Plaintiffs argue that they are evidence of the Defendant’s repudiation of the APS.  The Defendant argues that they were offers to settle contemplated litigation.  That goes to the merits of the motion for summary judgment and is precisely the kind of issue that should be decided by the judge who hears the motion for summary judgment.

[21]  In addition, even if these paragraphs are subject to settlement privilege, there is a real question as to whether the Defendant has waived any such privilege by including the same information in its Statement of Defence.  There is no motion by the Defendant to amend its Statement of Defence.  I do not see why the judge hearing the summary judgment motion should be permitted to read the Statement of Defence but not hear the Plaintiffs’ version of the same communications.  It will be up to the judge who hears the summary judgment motion to decide whether any of this is relevant evidence or inadmissible settlement discussions.  If the latter, the judge will be able to disregard it.