In the context of complex estate litigation, the applicant sought to withdraw two affidavits previously filed in support of a motion for the appointment of an Estate Trustee During Litigation and for documentary production.
The applicant argued the affidavits were no longer necessary due to a subsequent consent order that streamlined the proceedings and provided for documentary discovery.
The respondent opposed the withdrawal, arguing it was a tactic to shield the affiants from cross-examination.
The court held that leave is required to withdraw an affidavit filed in support of a motion.
Applying the Gill factors, the court granted leave, finding that the affidavits had not yet been used by the court, the respondents would not be prejudiced, and the withdrawal was a legitimate response to the evolving litigation landscape rather than an improper tactic to avoid cross-examination.
