ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0353
DATE: 20130426
BETWEEN:
PETER CATFORD, ELLEN CATFORD and JANE CHARLOTTE VOYVODIC CATFORD
Applicants
– and –
RODERICK ROLAND CATFORD
Respondent
K. Hamilton and D.L. Arbesman, for the Applicants
H. Turner, for the Respondent
HEARD: April 26, 2013
RULING ON A MOTION
HEALEY J.
[1] This endorsement is in addition to the endorsement made on April 26, 2013 in respect of the motion record filed by the respondent, seeking an adjournment of the application.
[2] Although this application has been adjourned to September 25, 2013, objections were heard from both parties’ counsel regarding the affidavits filed thus far. These are the affidavits of Peter Catford sworn March 26, 2013, and the responding affidavit of Roderick Catford sworn April 22, 2013.
[3] Rule 39.01(5) sets out the requirements for the contents of affidavits for use on applications:
An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.
[4] There is no motion before me to strike out paragraphs of the impugned affidavits, nor is this comment intended to invite such a motion to be made by either party.
[5] Suffice it to say that during the argument of the motion on September 25, 2013, the court will either decide to ignore the statements in question due to inadmissibility, or the appropriate weight to be given to the evidence sought to be relied upon, based upon the following factors:
The extent to which the statement complies with Rule 39.01(5);
Whether the statement intended to be relied upon is hearsay, falls within an exception to the hearsay rule, or should otherwise be admitted under the principled approach;
Whether the statement is an opinion;
Whether the statement comments on the very issue to be decided by the court;
Whether the statement is legal argument;
Whether the statement relays evidence of information and belief exclusively within the knowledge of that party’s counsel.
[6] Accordingly, this court orders that each paragraph of both of these affidavits shall be dealt with as necessary in accordance with the applicable law and in the discretion of the motions judge at the hearing on September 25, 2013.
HEALEY J.
Released: April 26, 2013