Court File and Parties

COURT FILE NO.: CV-22-2066 DATE: 2023-02-13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Haventree Bank, Plaintiff AND: Jennifer Leigh Lording, Defendant

BEFORE: Kurz J.

COUNSEL: Eva Lake, for the Plaintiff

HEARD: February 10, 2023, in chambers

Endorsement

[1] The Plaintiff Haventree Bank (the “Bank”) moves for a writ of possession following a judgment for possession granted December 14, 2022. In support of the motion, the Bank relies on an affidavit of a law clerk working for its lawyers.

[2] Based on a review of an “Occupancy Report” prepared by Appletree Property Management Inc. (“Appletree”), the law clerk deposes that a named employee attended at the subject premises to inspect and determine occupancy. Based on the clerk’s review of that occupancy report, she deposes that she believes that there are no tenants of the subject premises.

[3] The Occupancy Report was not prepared by the person who inspected the premises. Rather it is prepared over the name of another employee or person associated with Appletree. The role of that person is not set out in the report. Nor is the report signed, even by the person whose name is at the bottom of the report.

[4] Many litigants and counsel believe that evidentiary rules in written motions are so lax that virtually anything goes. That is not the case. The presumptive rule regarding affidavits, limiting evidence to facts that an affiant could testify to at trial, is set in Rule 4.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, which states:

(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

[5] Rule 39.01(4) sets out a limited exception to that rule for affidavits in a motion. It allows hearsay in such affidavits if certain conditions are met. It states:

(4) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

[6] The permissiveness of this subrule does not offer parties and counsel a licence for sloppiness, laxity or the admission of double or triple hearsay, as the Bank attempts to do here.

[7] In Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, Perell J. wrote at para. 27:

… the Rules of Civil Procedure permit hearsay evidence for motions. An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit. A statement in an affidavit that: (a) does not state the source of the affiant's information; or (b) contains inadmissible hearsay, legal and factual argument belonging in the factum, inflammatory rhetoric, or offensive allegations made for the purposes of prejudicing another party may be struck out in whole or in part.

[8] A court is not bound to accept unopposed and/or uncontradicted affidavit evidence if it fails to persuade. As Master Sandler wrote in Hrivnak v. Steel Art Co. (1989), 34 C.P.C. (2d) 34 (Ont. Master), at para. 27, the court is required “to scrutinize [the deponent’s] evidence carefully and see how it fits in with other evidence and with inferences that can fairly be drawn from the absence of other evidence, and if his evidence does not seem persuasive or consistent, [it] can refuse to accept it.”

[9] Further, paragraphs of an affidavit that “depend for their probative value on the inadmissible documents should be disregarded”: Unilease Inc. v. Lee-Mar Developments Ltd., (1987), 23 C.P.C. (2d) 46 (Ont. Master), at para. 11. In Peirson v. Bent (1983), [1993] O.J. No. 1184, 13 O.R. (3d) 429 (O.C.(G.D.)), Corbett J. refused to accept the affidavit of a law clerk offering their own opinions based upon attached medical reports. Corbett J. found that the affidavit only proved the receipt of the reports, not their contents. He pointed out that the medical evidence could have been provided to the court directly by the subject doctors rather than through a clerk’s affidavit.

[10] At para. 19 of Peirson, Corbett J. cited two older cases decided by Masters, relying on the best evidence rule to reject hearsay knowledge and belief affidavits. he wrote:

[In] Wiley, Lowe & Co. v. Gould, [1958] O.W.N. 316 (H.C.J.) … the appeal from an order of the senior master was dismissed. The senior master refused an application to set aside an ex parte order for substituted service of a writ of summons. The master refused to admit the four affidavits filed in support of the motion by three solicitors and a student which contained hearsay upon hearsay. No reason was given for not filing an affidavit by the defendant. The master relied on the principle stated in Dixon v. Gibson (1931), 40 O.W.N. 60 (Master's Ch.) that it was discretionary under the applicable rule to receive affidavits on information and belief, and concluded that the best evidence rule should be insisted upon.

[11] Here, I am being asked to make an order for possession that will effectively evict a person (or persons) from their home based on improper materials. If the court is going to make such an order, it should not be too much to ask of counsel and the financial institution they represent that they provide the court with proper materials to substantiate their request.

[12] In reviewing the materials before me, I have no difficulty disregarding the “knowledge and belief” affidavit of the deponent law clerk. It is based on what could best be described as double or even triple hearsay. That is, the knowledge and belief is based on:

• an unsigned report,
• written by a person whose role with the inspection company is left unsaid;
• who did not conduct the inspection that is the subject of the report; and
• who does not cite the source of her own information.

[13] Here, I have no difficulty disregarding a law clerk’s belief based on the flimsy evidence cited above.

[14] This motion is dismissed without prejudice to the right to bring it again upon proper evidence.

“ Marvin Kurz J.” Electronic Signature of Justice Marvin Kurz Date: February 13, 2023