The Alberta Court of Queen’s Bench considered the rules for admissibility of affidavit evidence at length.

ANC Timber Ltd. v Alberta (Minister of Agriculture and Forestry), 2019 ABQB 653, per Topolniski, J.

Facts + Issues

This case concerned an application by the Minister of Agriculture and Forestry (the “Minister”) for an Order striking 43 paragraphs and numerous exhibits of two affidavits filed by ANC Timber Ltd. (“ANC”) in support of ANC’s application for an interim injunction and interim stay of a forestry directive.

The impugned directive was issued in June 2018 and judicial review of the directive was scheduled for February 2020. The directive concerned restrictions on ANC’s ability to harvest timber under the terms of a forest management agreement.

ANC filed its interim injunction and stay application with two supporting affidavits (the “Affidavits”). The Minister then brought this application. ANC responded by filing further affidavits purporting to cure the potential defects. The Minister responded by amending their motion and applying to strike much of the new evidence.

The Affidavits contained a combined total of 1,576 pages including several exhibits. The motion to strike was on the grounds that the evidence in the Affidavits was irrelevant, unnecessary, hearsay, argument and/or conclusion, or expert opinion evidence. The impugned exhibits included reports from third parties, 49 newspaper articles, a journal article, and maps and summaries prepared by unidentified sources.

Issue: Is the impugned evidence properly admissible evidence, or is it frivolous, irrelevant or improper information that should be struck pursuant to Rule 3.68(4)?

HELD: For the Applicant Alberta Forestry, several portions of the Affidavits struck.

Reliability, Necessity, and Prejudice: The interlocutory nature of interim motions does not relieve a litigant of compliance with the rules of evidence. Evidence must be necessary, in that it is useful to prove a fact relevant to the issues in the case and reasonably reliable to be admissible. These factors are fluid such that, if evidence is highly necessary, the requirement for reliability may be relaxed.

1. Even where evidence is reliable and necessary, it may be excluded on the basis that its probative value is outweighed by its prejudicial effect. Prejudice can arise not only from evidence that works against a party’s interest, but from “evidence that potentially undermines an accurate result, or complicates, frustrates, or degrades the process, and includes adverse practical consequences such as the undue consumption of time, unfair surprise, the creation of distracting side issues, and a potential to confuse the trier of fact…” [para 19].

The Gatekeeper Role: The quest for efficacy should not override the Court’s gatekeeper role. However, Alberta courts have taken differing approaches and Justice Topolniski adopted with the views expressed in two prior cases:

1. In Bank of Montreal v Lysyk, 2002 ABQB 837, Justice Veit stated that the perfect approach would be not to allow any material before a judge sitting in chambers or at trial that could not be placed before a jury.
    
2. A similar approach was taken in Dulong v Merill Lynch Canada Inc., 2006 CanLii 9146 (SC), which stated that courts often take the path of least resistance by admitting evidence and then compensating for any of its weaknesses by attaching less weight. The Court stated that this approach was “an abdication of the proper function of a trial judge”.
    
3. Argumentative Evidence: Justice Topolniski confirmed that affidavits must not contain argument or conclusions and struck several portions of the Affidavits on that basis.

Irrelevant Evidence: The Minister argued that ANC had not mentioned certain disputed evidence in its brief and resultantly, the evidence was not relevant. Justice Topolniski confirmed that lack of mention, while curious, did not determine relevance. She further stated that relevance need not be immediately clear.

Hearsay: Compliance with Rule 13.18 is mandatory. However, the existence of Rule 13.18 does not mandate a Court to accept hearsay evidence and simply admitting such evidence without scrutiny “impairs the fundamental notion of a fair fact-finding process” [para 58].

1. Hearsay may be admitted if it is necessary and there is sufficient trustworthiness and “threshold liability can be met if there are adequate substitutes for traditional safeguards relied upon to test the hearsay evidence” [para 62]. It is also necessary to consider context.
    
2. The Minister argued that several newspaper articles, third party reports, and maps were inadmissible as hearsay evidence. Justice Topolniski ruled that newspaper articles, while inadmissible as hearsay in this case, are not always inadmissible. The newspapers in the present case were all published by local newspapers between 1981 and 2018. The Court held that relevance was questionable given the age of many of the articles, that the articles were replete with opinion evidence and there was no way to be confident in the author, and that the articles were prejudicial in that they created a distraction and an undue consumption of time. With respect to the reports, the Court held that they were inadmissible opinion evidence.
    
3. The Court also discussed admissibility of internet materials, and stated that “there is a growing trend for litigants to conduct research on the internet and attach what spews forth to an affidavit without regard to its propriety” [para 83]. Internet materials may be admissible if a well-known source is disclosed and if it is information that is capable of verification- hence, threshold reliability can be met if there are adequate substitutes for traditional safeguards.
    
4. The Affidavits also attached a PowerPoint found on the internet, and four maps. The Court held that the PowerPoint was inadmissible because its maker was unknown and there was no way to determine if the maker was an objective, reliable, and trustworthy source. The maps which were created by the Government of Alberta and Parks Canada were admissible.

Lay Opinion Evidence: The Court confirmed that “affidavits must not contain opinions other than permissible lay opinions” [para 98]. Opinion evidence is presumptively inadmissible. Of course, opinion evidence on matters requiring specialized knowledge is an exception. Still, there is no absolute bar to lay opinion evidence.

1. Some opinions are merely ordinary observations, and are admissible even through a lay witness. For example, lay opinions on certain subjects such as age, intoxication, estimates of speed, or emotional state are admissible.
    
2. The basic principles with respect to lay opinion evidence were cited from Dow Chemical Canada ULC v Nova Chemicals Corp., 2015 ABQB 401, and are as follows:
   1. The lay witness must be in a better position than the trier of fact to form the conclusion;
   2. The conclusion is one that persons of ordinary experience can make;
   3. The witness, although not expert, has the experiential capacity to make the conclusion;
   4. The opinions are a compendious mode of stating facts too subtle or complicated to be narrated as effectively without resort to conclusions [102].
       
3. However, courts must be mindful that evidence of lay witnesses with more experience in a certain area (eg. police officers giving evidence on level of intoxication) should not be given more weight than any other lay opinion.
    
4. None of the opinion evidence in the Affidavits met the threshold for admissibility as lay opinion or experiential fact.

Expert Opinion Evidence: The Court cited the discussion in Kon Construction Ltd. v Terranova Developments Ltd, 2015 ABCA 249 regarding the three categories of witnesses with expertise:

1. The three categories are:
   1. Independent experts retained to provide opinions about issues who were not involved in the litigation or underlying events such as Independent Medical Examiners;
   2. Witnesses with expertise who were involved in the events underlying the litigation, but are not themselves litigants such as a family doctor of the plaintiff in a personal injury case; and
   3. Litigants who have expertise (such as police officers) and who were actually involved in the events underlying the litigation [para 110].
       
2. Witnesses in the first category must always be qualified by the trial judge, and advance notice of their opinions must be given.
    
3. Expert evidence is permissible on interim motions. However, Alberta courts have taken various approaches to the introduction of expert opinion evidence in interim applications. In Kerich v Victoria Trail Physiotherapy, 2017 ABQB 471, Master Schlosser stated that expert evidence should be approached in interim applications the same way it would at trial. He advised that, at minimum, the court needs the qualifications of the expert, the information and assumptions on which the opinion is based, and a summary of the opinion.
    
4. In other cases, courts have allowed expert evidence on interim motions without the above information. Justice Topolniski stated that, although the Rules are silent on expert evidence during interim motions, “any expert evidence ought to be introduced as it would at trial” [para 124].
    
5. The deponent of one of the Affidavits, McCammon, was a previous long-term employee of ANC and had the level of knowledge and expertise to be qualified to give expert opinion evidence. However, he was not involved in the litigation or underlying events. Arguably, he would fall under the 1st category: independent experts, where the threshold for admissibility flows from the expert’s duty to be fair, objective, and non-partisan. This standard is very low and “anything less than clear unwillingness or inability to do so should not lead to exclusion” [para 146 citing White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23]. If such clear unwillingness or inability is not shown, then any other concerns will be addressed in the overall weighing of the costs and benefits of admitting.
    
6. There was no such clear unwillingness or inability shown on the part of McCammon, so the threshold was met. However, at the gatekeeper stage, the Court weighed the competing considerations and held the costs outweighed the benefits of admitting. The costs were a “complete want of evidence on the critical issue of the expert’s partiality, reliability concerns, and the potential prejudice arising from the ‘distraction factor’” [para 162].

Commentary

This is a timely decision in an age where counsel are not always scrupulous as to the rules of evidence relating to affidavits.