Court File and Parties

COURT FILE NO.: CV-14-00010676-00CL DATE: 2022-11-18

SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)

RE: Werner Jacob Wink, Plaintiff AND: Paul Boreham, 401 Energy Ltd., Gateway Wind Farms Development Inc., Last Chance Wind Power Corp., MFOP Wind Power Ltd. and Farm Owned Power (Melanethon) Ltd., Defendants

BEFORE: Osborne J.

COUNSEL: Craig Allen, for the Plaintiff Bryan McPhadden and Alaa Noui, for the Defendants

HEARD: November 18, 2022

Endorsement

[1] The Defendants seek an order striking parts of the affidavit of the Plaintiff filed in support of his motion for summary judgment.

[2] The summary judgment motion is scheduled to be heard in March, 2023. Mr. Werner Wink [the “Plaintiff”] relies on his own affidavit sworn February 7, 2022 in support of his motion for judgment.

[3] The Defendants challenge certain statements in that affidavit and asked that they be struck, largely on the basis that they do not comply with Rules 4.06 and 39.01 (and particularly Rule 39.01(4)) since they constitute hearsay statements and the affidavit fails to state the source for the belief or the information.

[4] The Defendants rely on numerous authorities, most of which flow from Cameron v. Taylor, (1992), 10 O.R. (3d) 429, to the effect that paragraphs or statements in an affidavit which fail to state the source of the deponent’s information and belief as to contentious matters, ought properly to be struck out.

[5] The specific statements that are impugned are those highlighted in yellow in the copy of the Plaintiff’s affidavit appended to the Notice of Motion beginning at CaseLines page B-1-17.

[6] Counsel for the Defendants directed the attention of the Court to those statements and particularly the highlighted statements found at paragraphs 15, 17, 18, 19, 22, 25, 28, 32, and 39‑41. For each of these, and it is obvious from a review of the statements themselves, the challenge is either or both that there is no source given for the belief of the deponent, and no basis or source for that belief provided [i.e., the document or documents referred to, etc.].

[7] There is no dispute that the statements are in respect of matters and facts that are contentious in the proceeding.

[8] Counsel for the Defendant submits that the Plaintiff, in its factum filed in response to this motion, essentially acknowledges the issues and deficiencies described above, but tries to save them with reference to the saving provisions in the Rules. However, as the Defendants submit, the Plaintiff has made no request to file a new affidavit or supplementary affidavit which might easily address the deficiencies.

[9] The Plaintiff relies upon the reasoning in Kolosov v. Lowe’s, 2015 ONSC 4761 at paras. 137-142, in which the court observed that paragraphs or statements that otherwise might be struck could be saved by Rule 1.04 if they deal with noncontentious matters, or if other filed evidence reveals the requisite source.

[10] The Court in that case concluded that the transcripts and other documents filed as exhibits to the affidavit in question revealed the source of the information of the deponent with the result that the sources of the information set out in the affidavit are discernible on a reading of the affidavit as a whole.

[11] Here, the Plaintiff submits that the exhibits to the affidavit reveal and disclose, in the case of each of the impugned statements or paragraphs challenged by the Defendants, the particulars of the fact deposed to and the source of the belief of the deponent. Counsel for the Plaintiff took me to various references to corporations, lawyers, and other facts relevant to these issues identified in the exhibits to the affidavit.

[12] Counsel for the Defendants argues that he should not have to do the work that ought to have been done by the affidavit itself, and in any event, the Plaintiff had opportunities to provide or clarify the source of the information if indeed it was contained in the exhibits to the affidavit, with the result that this motion ought not to have been necessary. Counsel for the Plaintiff concedes that this might have been preferable but that in any event, the information is there with the result that the statements should not be struck.

[13] It appears that there are sources and/or a basis for the belief of the deponent, for the statements in the affidavit found in the exhibits thereto. However, it equally appears that the motion could have been avoided if counsel for the Plaintiff had provided the information and sources to the Defendants as requested, such as was done at the hearing of the motion.

[14] In the circumstances, I decline to strike the impugned statements in the affidavit, provided that within 10 days of the date of the release of this endorsement, the Plaintiff provides to the Defendants, by way of a supplementary affidavit, the source for the information and belief in respect of each of the impugned statements highlighted in the affidavit appended to the Notice of Motion. The timing is intended to maintain the schedule already set for the hearing of the summary judgment motion.

[15] The pending motion is for summary judgment which could result in a final disposition of this proceeding. It is important in the interests of justice that as full a record as possible be before the Court.

[16] The motion ought not to have been necessary, and the Defendants are entitled to costs. They seek $5,000 plus HST. The Plaintiff submits that costs of $2,000 plus HST are appropriate.

[17] In my view, and considering my discretion pursuant to section 131 of the Courts of Justice Act and the factors enumerated in Rule 57.01, I award the Defendants costs in the amount of $3,600 inclusive of fees, disbursements and HST, payable within 60 days and in any event of the result of the summary judgment motion.

Osborne J.

Released: November 18, 2022