Court File and Parties

Court File No.: CV-20-1055-0000 Date: 2023-11-02 Superior Court of Justice - Ontario

Re: CIBC, Plaintiff And: Shaduli Saman Thaikkanday and Famida Pullan, Defendants

Before: Kurz J.

Counsel: Eva Lake, for the Plaintiff

Heard: In writing

Endorsement

[1] This is a motion for a writ of possession following a judgment for that relief. It is based on the inadmissible hearsay evidence found in the affidavit of a law clerk employed by the Plaintiff’s law firm.

[2] In support of the proposition that the property is only occupied by one of the defendants and not the other or any tenant, the law clerk attaches an unsigned “Occupancy Report”, prepared by an unnamed author.

[3] Of relevance to this motion, all that the report states is that:

Our inspector attended this properly on 09/06/2023. Inspector spoke with Famida. She confirms that she resides at the property with her 2 kids. Her ex husband no longer lives at the property. His phone number is [redacted]. The property is furnished and not listed for sale. Vehicle in driveway lic# [redacted].[^1]

[4] Even the identity of “[o]ur inspector” is not set out.

[5] I discussed the problem with the quality of affidavits such as this in Haventree Bank v. Lording, 2023 ONSC 1077. At that time I wrote at para. 6 that:

[t]he permissiveness of [Rule 39.01(5), allowing certain hearsay in affidavits on interlocutory motions] does not offer parties and counsel a license for sloppiness, laxity or the admission of double or triple hearsay…

see also: China Yantai Friction Co. v. Novalex Inc., 2023 ONSC 3424. That subrule requires that the facts not be contentious and that the source of the information as well as the fact of the deponent’s belief be set out.

[6] It is trite law that a person who brings an ex parte motion has a duty to disclose all material facts: Robert Half Canada Inc. v. Jeewan (2004), 2004 ONSC 1532, 71 O.R. (3d) 650 (S.C.). That would include facts which are not favourable to the moving party: see for example Launch! Research & Development Inc. v. Essex Distributing Co. (1977), 4 C.P.C. 261 (Ont.H.C.), at paras. 4-5. The failure to meet this duty of candour can alone lead to the motion being dismissed: Essex Distributing. Thus, when an affidavit based on information and belief is proffered in an ex parte motion, the deponent and person relying on the affidavit must be especially careful to ensure the veracity of the hearsay information contained in the affidavit. Without that full disclosure the court cannot know whether its contents are contentious.

[7] No such care or effort was exercised here.

[8] I further adopt the further comments that I made in Haventree Bank v. Lording, at paras. 11 – 13:

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.

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.

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

[9] I add that the same law firm that filed the materials set out above filed the materials in this motion. It is not too much to insist on proper materials for a motion such as this. I add that law firms which act for financial institutions are responsible for ensuring that they obtain proper evidence from the persons conducting their occupancy inspections and preparing their occupancy reports. That should include the person who conducted the inspection identifying themselves and signing the inspection report. The best practice would be for that person to swear an affidavit of their own, although that is not strictly required by Rule 39.01(5).

[10] I dismiss this motion without prejudice to the right of the Plaintiff to bring it again upon better materials. The Plaintiff should not seek any costs for this motion against either of the Defendants as they should bear no financial responsibility for this motion.

[11] In light of my comments in the follow up motion to the Haventree Bank v. Lording motion cited above, reported at 2023 ONSC 2144, any further motion in this matter shall be brought to my attention.

[^1]: I have redacted confidential information contained in the Occupancy report.