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Class Action

Decision provides guidance on when an affidavit is needed: Waddell

A court has provided a helpful primer to lawyers to determine when evidence submitted as part of a motion or application must be made an exhibit to an affidavit, says Toronto class-action lawyer Margaret Waddell.

“This decision provides a really good breakdown of what the law is and how people should be applying it,” says Waddell, a partner with Waddell Phillips Professional Corporation.

Waddell acts for the plaintiffs in the proposed class-action suit. The motion for certification is scheduled to be argued June 7 and 8.

The decision arose in the midst of a lawsuit against a ballet school and a former teacher, who was also the school’s unofficial photographer. He is alleged to have taken intimate photos of students and offered them for sale online.

The lawsuit alleges almost two-dozen causes of action, including sexual assault, sexual exploitation, breach of fiduciary duty, intrusion upon seclusion, invasion of privacy and negligence. 

The plaintiffs, who delivered their motion record for certification in November 2017, brought a motion seeking to expunge a medical journal article that was included in the former teacher’s responding motion without a covering affidavit. The judge decided in favour of the plaintiffs.

“I think it’s an interesting case insofar as this learned article was being included in the certification record as though it was the same thing as a legal authority,” Waddell tells AdvocateDaily.com.

“The court’s decision outlines the usual rule, which is that one is allowed to put into one’s authorities learned articles if they’re talking about the law, in which case they are legal authorities that the judge can use to shape her or his decision, because they help to inform what the law is and how it’s being analyzed by people who are learned in the law.”

Instead, the article in question was written by medical professionals and concerned “the kind of information needed to conduct a medical assessment or psychological assessment of victims of abuse,” Waddell says.

“That is the kind of information that has to be established by an expert in that field, who’s then subject to cross-examination, because there may be differing views on what evidence is required, what evidence is not required and how one interprets all of that.

“That is the kind of information that has to be established by an expert in that field, who’s then subject to cross-examination, because there may be differing views on what evidence is required, what evidence is not required and how one interprets all of that.”

Waddell says the article could have been submitted if it simply followed the rules of evidence.

“One of its authors could swear an affidavit and append the article, or swear an affidavit that set out all the details of the article," she says.

"And it could even have been put to our own expert, and asked whether she accepted what was set out in there. But they chose not to cross-examine our expert. At that point, I thought this article isn’t proper evidence, and so it shouldn’t be influencing the judge’s decision when it’s not part of the evidentiary record.”

The court notes that the plaintiffs argued the article was opinion evidence and should have been submitted in accordance with rules 4.06 and 39.01 of the Rules of Civil Procedure. Rule 39.01 requires evidence to be proffered by affidavit. The defendant argued the article was “other material” and fell under rule 37.10.

The defendant “submits that the court can take judicial notice of scholarly articles. He submits that the article does not go to the heart of the dispute and is not evidentiary, but rather the article provides the court with useful background information about the type of information that must be considered in cases involving historical claims,” the decision reads.

But the court found that the article did not qualify as “other material” and that it could not take judicial notice of the article.

“The case at bar and the issue for which the article is submitted does not involve legislative facts, but rather involves adjudicative facts,” its decision says.

“If a fact is an adjudicative fact, as opposed to legislative or social fact, the scope of judicial notice is narrowed and if the adjudicative fact is central to a dispositive issue, resort to judicial notice is not allowed. Thus, the scope of judicial notice depends on the nature of the facts for which judicial notice is to be taken including the centrality of that fact to a dispositive issue in the litigation," it says.

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