Court File and Parties
Court File No.: CV-20-0289-0000 Date: 2023-06-06 Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6
Re: China Yantai Friction Co. Ltd., Applicant -and- Novalex Inc., Respondent
Before: C. Chang J.
Counsel: P. Starkman and C. Zhang for the Applicant J. Wadden and E. Church Carson for the Respondent
Heard: May 23, 2023
Endorsement
[1] At the commencement of the hearing of this application, the applicant brought a motion to strike out all of the respondent’s affidavits, inclusive of exhibits except exhibit D to the affidavit of Fei Zhang sworn January 12, 2023. As set out in my endorsement dated May 23, 2023, the parties made their submissions on the applicant’s motion to strike and, on consent, the application hearing was adjourned. Below is my endorsement on the motion.
[2] The applicant submits that the respondent’s affidavits should be struck out, as they all contain inadmissible hearsay, opinion and argument and constitute “fresh evidence” for which the respondent has failed to seek – let alone obtain – leave to adduce.
[3] The respondent opposes the applicant’s motion and submits that, although some of its affidavit evidence may violate the rules of evidence, none of its affidavits should be struck out in whole or in part.
Preliminary Observations
[4] The issues raised on this motion are emblematic of a troubling and increasing trend in the affidavits that come before our court.
[5] It is settled law that affidavits should be limited to statements of fact within affiants’ personal knowledge, but there is an exception for non-contentious issues, where the content may be based on information obtained from other persons (who are identified in the affidavits) and believed by the affiants to be true (which belief is expressly stated in the affidavits).
[6] However, too many counsel, in complete disregard of the most fundamental rules of evidence, are filing affidavits replete with inadmissible hearsay (including double and triple hearsay) and inadmissible opinion and argument. Counsel appear to be of the belief that affidavit evidence is a boundless free-for-all realm where the rules of evidence are an easily sidestepped inconvenience. They are wrong. These types of affidavits have no place in a proper evidentiary record.
[7] Of particular concern is the increasing amount of inadmissible opinion and argument that pervades affidavits that are filed on motions, application and trials; particularly in civil and family cases. Opinion evidence is the domain of expert witnesses that have been qualified by the court. Legal argument is the domain of counsel or self-represented litigants in their written and oral arguments. Neither holds any proper place in lay witnesses’ affidavits.
[8] Should counsel continue to ignore the rules of evidence in the preparation of affidavits, requests to strike out those affidavits will continue to increase, as will the resultant delay in the timely administration of justice.
Facts
[9] The facts relevant to this motion are not contested and can be summarized as follows:
a. the parties participated in an arbitration in China pursuant to the arbitral rules of the China International Economic and Trade Arbitration Commission;
b. a three-member arbitral panel issued its arbitral award on November 18, 2018;
c. the applicant commenced the application herein on January 24, 2020 for recognition and enforcement of the arbitral award pursuant to the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5;
d. in response to the application, the respondent delivered the following affidavits:
i. the affidavit of Fei Zhang sworn January 12, 2023 with exhibits A through H (the “Jan.12 Zhang affidavit”),
ii. the affidavit of Steven Hu sworn January 13, 2023 with exhibits A through E (the “Jan.13 Hu affidavit”),
iii. the affidavit of Fei Zhang sworn January 30, 2023 with exhibits A through D (the “Jan.30 Zhang affidavit”),
iv. the affidavit of Ling Qing Hu sworn March 1, 2020 with exhibits A through H (the “Mar.1 Hu affidavit”),
v. the affidavit of Ling Qing Hu sworn September 20, 2020 with exhibit A (the “Sept.20 Hu affidavit”), and
vi. the affidavit of Ling Qing Hu sworn October 1, 2020 (the “Oct.1 Hu affidavit”); and
e. the respondent delivered the Mar.1 Hu affidavit, the Sept.20 Hu affidavit and the Oct.1 Hu affidavit in support of its motion for security for costs, but also relies on them as part of its response to the application.
Issues
[10] The issues for determination on this motion are as follows:
a. Should the respondent’s affidavits be struck out as constituting inadmissible hearsay?
b. Should the respondent’s affidavits be struck out as constituting inadmissible opinion and/or argument?
c. Should the respondent’s affidavits be struck out as constituting “fresh evidence” for which leave has not been granted?
d. To the extent that any of the respondent’s affidavit evidence is struck out, should the respondent be granted leave to amend?
Analysis
Issue 1: Some of the respondent’s evidence should be struck out as inadmissible hearsay
Parties’ Positions
[11] The applicant submits that the respondent’s affidavits (except exhibit D to the Jan.12 Zhang affidavit) should be entirely struck out because they all constitute inadmissible hearsay. Despite my specific inquiry, the applicant’s counsel did not specify what part(s) of the respondent’s affidavits constitute(s) inadmissible hearsay, but, instead, submitted that all of it was inadmissible hearsay.
[12] The respondent submits that none of its affidavits should be struck out, as they are all based on the affiants’ personal knowledge and any inadmissible evidence relates only to non-contentious issues. To the extent that any violations of the hearsay rule relate to contentious issues, the offending paragraphs should be left to the application judge to determine the weight of that evidence. In the further alternative, only the paragraphs below violate the hearsay rule, instead of being struck out, they should be given no weight:
a. in the Jan. 12 Zhang affidavit, paragraph 5 (except the last sentence); and
b. in the Mar.1 Hu affidavit, paragraphs 13 (the first and second sentences), 21, 22 (the third sentence), 26, 28 and 29.
Law
[13] Rule 4.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that, except as otherwise provided in the Rules of Civil Procedure, an affidavit be confined to statements of fact within the personal knowledge of the affiant or to other evidence that the affiant could give if testifying as a witness in court.
[14] Rule 39.01(5) of the Rules of Civil Procedure allows for affidavits for use on applications to contain statements of the affiant’s information and belief respecting non-contentious facts, provided that both the source of that information and the fact of the affiant’s belief in the veracity of that information is specified in the affidavit.
[15] The permissiveness of rule 39.01(5) “does not offer parties and counsel a license for sloppiness, laxity or the admission of double or triple hearsay” (see: Haventree Bank v. Lording, 2023 ONSC 1077, at para. 6).
[16] The failure to comply with the basic requirements of specifying the source of the affiant’s information and stating the affiant’s belief in the veracity of that information requires that the offending evidence be struck (see: Flight (Re), 2022 ONCA 77, at para. 13).
Decision
[17] I find that the following constitute inadmissible hearsay and should be struck out:
a. in the Jan.13 Hu affidavit, paragraphs 5 (the first sentence), 9, 10 (the fourth sentence), 11 (the third sentence) and 12 (the last sentence); and
b. in the Mar.1 Hu affidavit, paragraph 30 (second sentence).
[18] All of the above paragraphs constitute inadmissible hearsay that violates rule 4.06(2). Furthermore, the respondent has no proper resort to rule 39.01(5), as those paragraphs completely fail to both specify the sources of the affiants’ information and state their belief in the veracity of that information. As set out in Flight, at para. 13, the failure to comply with these basic requirements mandates the striking out of the offending evidence.
[19] I do not accept the respondent’s argument that I should not strike out the offending paragraphs in its affidavits, but, instead, allow the application judge to determine the weight of that evidence. As clearly stated by the Court of Appeal for Ontario, the temptation “to rule all relevant evidence as admissible, subject to their later assessment of weight” is a temptation to engage in legal heresy (see: Bruno v. Dacosta, 2020 ONCA 602, at para. 65). I am neither prepared nor tempted to engage in such heresy. Similarly, I cannot accept the respondent’s alternative argument that a number of the offending paragraphs should not be struck out, but also given no weight. In my view, to accept this argument would be an even worse legal heresy.
[20] I also do not accept the applicant’s argument that all of the respondent’s evidence (other than the paragraphs identified above) is inadmissible hearsay. A plain reading of the remaining affidavit evidence does not support the applicant’s argument.
Issue 2: Some of the respondent’s evidence should be struck out as inadmissible opinion and/or argument
Parties’ Positions
[21] The parties take similar positions on the issue of opinion/argument as they do on the hearsay issue.
[22] The applicant submits that the respondent’s affidavits (again, except exhibit D to the Jan.12 Zhang affidavit) should be struck out, as they all contain inadmissible opinion and/or argument. Again, despite my specific inquiry, the applicant’s counsel did not specify what part(s) of the respondent’s affidavits constitute(s) inadmissible argument or opinion.
[23] The respondent submits that none of its affidavits should be struck as containing inadmissible opinion or argument; however, again, to the extent that they do, the offending paragraphs should left for the application judge to assess the evidentiary weight. In the further alternative, again, the following paragraphs should not be struck out, but simply be given no weight:
a. in the Jan.12 Zhang affidavit, paragraphs 9 (the first sentence), 10, 11 (everything after the word “Award”), 12, 13 and 14; and
b. in the Mar.1 Hu affidavit, paragraphs 13 (the last sentence), 21, 22 (third sentence), 23 (last line), 25, 26, 28 and 29.
[24] Of the paragraphs in the Mar.1 Hu affidavit, the respondent advised in oral argument that it is “no longer relying on” paragraphs 26 (the second, fourth and fifth sentences), 28 and 29.
Law
[25] Generally, and subject to specific recognized exceptions, only properly qualified experts may provide opinion evidence respecting matters of fact, but not respecting legal issues (see: R. v. Daou, 2021 ONCA 380, at paras. 69-70).
[26] Opinion and argument “are not facts but conclusions and unless the witness is tendered as an expert then the witnesses’ opinion is neither admissible nor probative of anything” (see: Glasjam v. Freedman, 2014 ONSC 3878, at para. 35).
[27] Statements in an affidavit that contain “legal and factual argument belonging in the factum” or inflammatory rhetoric may be struck out in whole or in part (see: Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, at para. 27).
Decision
[28] I find that the following paragraphs constitute inadmissible opinion and/or argument and should be struck out:
a. in the Jan.12 Zhang affidavit, paragraphs 4 (the last sentence), 5 (the third sentence), 6 (the third and fifth sentences), 9, 10, 11 (everything after the word “Award”), 12, 13 and 14;
b. in the Jan.13 Hu affidavit, paragraph 11 (the fifth sentence); and
c. in the Mar.1 Hu affidavit, paragraphs 13, 15, 21, 22 (the first and third sentences), 23 (the words “crucial” and “real” in the second sentence), 24 (the word “crucial” and everything after “another report,”), 25, 26, 28, 29 and 38; and
d. in the Oct.1 Hu affidavit, paragraph 2.
[29] None of the above paragraphs constitutes sworn evidence of facts within the affiant’s knowledge, but, rather, are the affiant’s conclusions that are “neither admissible nor probative of anything” (see: Glasjam, at para. 35). None of the respondent’s affiants was tendered or qualified as an expert in any field, let alone in the areas in which he or she has opined.
[30] I again do not accept the respondent’s argument that I should not strike the offending paragraphs in its affidavits, but, instead, leave the issue of weight to the application judge or find that no weight should be given to that evidence. I am again neither tempted nor prepared to engage in the applicable legal heresy.
[31] Furthermore, given that the respondent no longer seeks to rely on paragraphs 26 (the second, fourth and fifth sentences), 28 and 29 of the Mar.1 Hu affidavit, same have even less of a place in the evidentiary record.
[32] I also do not accept the applicant’s argument that all of the respondent’s evidence (other than the paragraphs identified above) is inadmissible opinion or argument. A plain reading of the remaining affidavit evidence does not support the applicant’s argument.
Issue 3: None of the respondent’s affidavit evidence constitutes “fresh evidence”
Parties’ Positions
[33] On the issue of “fresh evidence”, the applicant takes a similar position as on the previous two issues and again argues that all of the respondent’s affidavits (again, except exhibit D to the Jan.12 Zhang affidavit) should be struck out. Relying on Tianjin Dinghui Hongjun Equity Investment Partnership v. Du, 2023 ONSC 1808 and United States v. Whyte, 2016 ONCA 624, the respondent argues that the respondent’s affidavits constitute “fresh evidence” and are inadmissible because the respondent has failed to obtain leave to adduce it.
[34] The respondent admits that it has not sought leave to adduce fresh evidence, but argues that it is because its affidavits are not fresh evidence for which such leave is required.
Law
[35] In Tianjin, Kimmel J. decided a motion to adduce additional evidence after the completion of an application hearing, but before she had rendered her decision, respecting the recognition and enforcement of an international arbitral award. She set out the following two-part test at para. 30:
a. Would the evidence, if presented at the hearing, probably have changed the result (e.g. is it relevant and material to the issues in dispute)?
b. Did the evidence exist, and could it have been obtained before the hearing by the exercise of reasonable diligence?
[36] In Whyte, the Court of Appeal for Ontario, in deciding an appeal under the Extradition Act, S.C. 1999, c. 18, re-iterated the test for adducing fresh evidence on appeal as set out by the Supreme Court of Canada in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775:
a. the evidence should generally not be admitted if it could have been obtained by the exercise of due diligence at trial;
b. the evidence must be relevant and bear upon a decisive or potentially decisive issue in the proceedings at first instance;
c. the evidence must be reasonably capable of belief; and
d. the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Decision
[37] I find that none of the respondent’s affidavits is “fresh evidence”; therefore, the respondent is not required to obtain leave to adduce same.
[38] Contrary to the applicant’s argument, the respondent’s affidavits do not constitute additional evidence sought to be adduced in a proceeding that has already been heard on the merits or evidence sought to be adduced on appeal where it was not adduced in the court below.
[39] The application in the case-at-bar has yet to be heard, let alone appealed, so the tests for “fresh evidence” set out in Tianjin and Whyte do not apply.
Issue 4: The respondent should be granted leave to amend some of the offending evidence
[40] Neither party directed any of its submissions to the issue of leave to amend. However, given my decision to strike various paragraphs in some of the respondent’s affidavits, I am nonetheless required to address this issue.
Law
[41] The law is settled that the applicable threshold for denying leave to amend affidavits, pleadings, etc. that have been struck out is a high one. Leave to amend should be denied only in the clearest of cases and should be granted where the applicable deficiencies can be cured and the granting of leave to amend would not occasion prejudice on the other party (see: Burns v. RBC Life Insurance Company, 2020 ONCA 347, at para. 22).
Decision
[42] I find that, of the paragraphs in the respondent’s affidavits to be struck out, leave should be granted to amend the following:
a. in the Jan.13 Hu affidavit, paragraphs 5 (the first sentence), 9, 10 (the fourth sentence), 11 (the third sentence) and 12 (the last sentence); and
b. in the Mar.1 Hu affidavit, paragraphs 30 (second sentence) and 25.
[43] As outlined earlier in my findings, all of the above paragraphs except paragraph 25 in the Mar.1 Hu affidavit offend the requirements of rules 4.06(2) and 39.01(5). In my view, this deficiency can be cured by the proper redrafting of those offending paragraphs that complies with the requirements of rule 39.01(5). With respect to paragraph 25 of the Mar.1 Hu affidavit, the applicable deficiency can also be cured by way of proper redrafting that contains neither opinion nor argument. The applicant would suffer no prejudice occasioned by that proper redrafting.
[44] As for the other paragraphs containing inadmissible opinion and/or argument, in my view, leave to amend should not be granted. There is no indication – let alone evidence – of the subject affiants’ qualifications as expert witnesses such that any amendments could assist in the admissibility of the offending contents (see: Botelho v. Faulkner, 2020 ONSC 6471, at para. 50). Simply put, there is no redrafting that could save those paragraphs.
Costs
[45] After the motion hearing, counsel advised that the parties have agreed on the applicable quantum of cost to be awarded to the successful party.
[46] However, based on the above, success on this motion was divided. Even if that success was unequally divided, in my view, the unreasonable positions taken by the parties on this motion would, in any event, disqualify them from a favourable costs order.
[47] I am therefore not prepared to award any costs to either party.
Disposition
[48] I therefore make the following orders:
a. the following paragraphs of the respondent’s affidavits are struck out with leave to amend:
i. in the Jan.13 Hu affidavit, paragraphs 5 (the first sentence), 9, 10 (the fourth sentence), 11 (the third sentence) and 12 (the last sentence), and
ii. in the Mar.1 Hu affidavit, paragraphs 30 (second sentence) and 25;
b. the following paragraphs of the respondent’s affidavits are struck out without leave to amend:
i. in the Jan.12 Zhang affidavit, paragraphs 4 (the last sentence), 5 (the third sentence), 6 (the third and fifth sentences), 9, 10, 11 (everything after the word “Award”), 12, 13 and 14,
ii. in the Jan.13 Hu affidavit, paragraph 11 (the fifth sentence),
iii. in the Mar.1 Hu affidavit, paragraphs 13, 15, 21, 22 (the first and third sentences), 23 (the words “crucial” and “real” in the second sentence), 24 (the word “crucial” and everything after “another report,”), 26, 28, 29 and 38, and
iv. in the Oct.1 Hu affidavit, paragraph 2; and
c. there shall be no costs of this motion.
C. Chang J. Date: June 6, 2023