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Civil Litigation - Affidavits. Folz v Algoma Family Services
In Folz v Algoma Family Services (Div Court, 2023) the Divisional Court considered a JR of IPC-PHIPA adjudication denials regarding requests for personal health information held by a child protection agency, specifically, information: "... made in relation to an intensive treatment program for the Applicant’s son".
In these quotes the court comments on the difficulty in isolating the relevance of different portions of affidavits, here in light of the JR 'Keeprite' record fresh evidence doctrine:[23] Moving to the affidavits, the Applicant relies on the principles in Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) and related cases, which provide that supplementary evidence is permitted in limited circumstances. Unfortunately, these two affidavits are an amalgam of material, some of which is simply inadmissible, some of which is already in the record of proceedings, some of which does not fall within the permitted circumstances for additional evidence, and some of which does.
[24] We accept the evidence that explains why the Applicant, himself, did not initiate a reconsideration. The evidence about court orders in the family law proceedings is unnecessary. The record of proceedings includes the court orders that the Adjudicator reviewed, as discussed further below. The proposed evidence about the nature of the family law proceedings, and whether there was a basis in the record for other findings, contains argument about what conclusions should be drawn from the record. Those arguments may be made without supplementing the record of proceedings. However, in this case, even if we accepted all of the affidavit evidence it would not change the outcome. It is therefore unnecessary to go through the problems with the evidence in more detail. . Rosianu v. Western Logistics Inc.
In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal commented on the nature of admissible affidavit evidence, here in a judicial review:[29] Moreover, as explained by the Federal Court, there are general principles applicable to affidavit evidence (specifically, in this context, Rule 81(1) of the Federal Courts Rules, SOR/98-106), for example, it cannot consist of arguments, opinions, or hearsay. Finally, the evidence must be relevant to an issue properly before the Court. ...
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