T-256-77
The Queen (Plaintiff)
v.
A. & A. Jewellers Limited (Defendant)
Trial Division, Thurlow A.C.J.—Ottawa, August
2, 1977.
Practice — Rule 419(1)(d) — Application to strike sentence
from statement of defence — Rule 332(1) — Use of secondary
information in affidavits — Deponent to swear to statements
—Federal Court Rules 332(1) and 419(1)(d).
APPLICATION.
COUNSEL:
Paul J. Evraire for plaintiff.
Sydney L. Goldenberg for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Goodman & Carr, Toronto, for defendant.
The following are the reasons for order ren
dered in English by
THURLOW A.C.J.: This is an application under
Rule 419(1)(d) for an order striking out the
sentence:
On or about the 21st day of July, 1976, the defendant was
contacted by an official of Excise Tax Collections in Toronto
who threatened to send a bailiff to the defendant's premises or
to take proceedings to attach accounts receivable if the amount
demanded as aforesaid was not immediately paid.
in paragraph 25 of the defence. The action is for
sales and excise taxes and penalties.
In my opinion, the impugned sentence is irrele
vant. On the face of it, it is neither a defence nor
part of a defence on the question whether the
defendant is liable for the taxes or penalties
claimed. It is open to objection both under Rule
419(1)(a) and 419(1)(d). The plaintiff should not
be obliged to plead to it. It will, therefore, be
struck out.
On the other hand, I agree with the submission
of counsel for the defendant that the affidavit filed
by the plaintiff in support of the application is
purely argumentative. It is, therefore, useless.
Moreover, in my view, it is not admissible under
Rule 332(1). It says that the deponent, who does
not state his profession or calling', is informed by
a named person and verily believes the argumenta
tive matter which is then set out. It says nothing to
describe the person named or to identify him as
being someone who has knowledge of what is to be
related. It says nothing as to why, if the named
person had knowledge, he did not make the affida
vit himself.
Rule 332(1) provides:
Rule 332. (1) Affidavits shall be confined to such facts as the
witness is able of his own knowledge to prove, except on
interlocutory motions on which statements as to his belief with
the grounds thereof may be admitted.
It seems to have become a common practice in
preparing material for use in interlocutory applica
tions to ignore the first clause of this Rule and to
use the second clause as a device to avoid the
swearing of an affidavit by a person who knows the
facts in favour of putting what he knows before the
Court in the form of hearsay sworn by someone
who knows nothing of them. This is not the object
of the Rule. The Court is entitled to the sworn
statement of the person who has personal knowl
edge of the facts when he is available. The second
part of the Rule is merely permissive and is for use
only when the best evidence, that is to say the oath
of the person who knows, is for some acceptable or
obvious reason not readily obtainable.
The order will go without costs.
' It is stated that the deponent is a member of a civil
litigation group of the Department of Justice, but the affidavit
does not disclose whether he is a solicitor, a clerk or an errand
boy.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.