Eva Lake

The plaintiff bank brought an ex parte motion for a writ of possession following a judgment.

The motion was supported by an affidavit from a law clerk attaching an unsigned occupancy report prepared by an unnamed author, constituting double or triple hearsay.

The court dismissed the motion without prejudice, emphasizing that the permissiveness of Rule 39.01(5) does not excuse sloppiness or the admission of unreliable hearsay, especially on an ex parte motion where a duty of candour applies and the order sought would evict individuals from their home.

The plaintiff brought an ex parte motion in writing for leave to issue a writ of possession for a mortgaged property following a default judgment.

The court was satisfied that the occupants had received sufficient notice of the proceeding, despite difficulties in conducting an occupancy check.

The motion was granted, with the writ of possession expressly directing the Sheriff not to interfere with any unknown tenants in actual possession without further court order.

The Plaintiff, Haventree Bank, brought a second ex parte motion for a writ of possession, having previously had a similar motion dismissed due to insufficient evidence.

The Bank failed to disclose the prior dismissal and presented contradictory evidence regarding an occupancy check.

The court emphasized the common law and Rule 39.01(6) duty of full and fair disclosure in without-notice motions, stating that failure to disclose material facts, including prior judicial findings, is unacceptable.

Due to the lack of candour and material discrepancies in the evidence, the motion was not granted but adjourned to be heard in person, on notice to the Defendant.

The plaintiff, Haventree Bank, brought a motion for a writ of possession following a judgment for possession.

The motion was dismissed because the supporting affidavit from a law clerk relied on inadmissible double or triple hearsay from an unsigned occupancy report, failing to meet the evidentiary requirements of the Rules of Civil Procedure, specifically Rule 4.06(2) and Rule 39.01(4).

The court emphasized that even unopposed affidavit evidence must be persuasive and adhere to proper evidentiary rules, particularly when seeking an order that would evict a person from their home.