Case Summary: ANC Timber Ltd. V Alberta (Minister Of Agriculture And Forestry)

• Published date: 23 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Real Estate and Construction, IT and Internet, Trials & Appeals & Compensation, Land Law & Agriculture
• Law Firm: Field LLP
• Author: Ms Angela Beierbach

The Alberta Court of Queen's Bench considered the rules for admissibility of affidavit evidence at length.

ANC Timber Ltd. v Alberta (Minister of Agriculture and Forestry), 2019 ABQB 653, per Topolniski, J.

Facts + Issues

This case concerned an application by the Minister of Agriculture and Forestry (the "Minister") for an Order striking 43 paragraphs and numerous exhibits of two affidavits filed by ANC Timber Ltd. ("ANC") in support of ANC's application for an interim injunction and interim stay of a forestry directive.

The impugned directive was issued in June 2018 and judicial review of the directive was scheduled for February 2020. The directive concerned restrictions on ANC's ability to harvest timber under the terms of a forest management agreement.

ANC filed its' interim injunction and stay application with two supporting affidavits (the "Affidavits"). The Minister then brought this application. ANC responded by filing further affidavits purporting to cure the potential defects. The Minister responded by amending their motion and applying to strike much of the new evidence.

The Affidavits contained a combined total of 1,576 pages including several exhibits. The motion to strike was on the grounds that the evidence in the Affidavits was irrelevant, unnecessary, hearsay, argument and/or conclusion, or expert opinion evidence. The impugned exhibits included reports from third parties, 49 newspaper articles, a journal article, and maps and summaries prepared by unidentified sources.

Issue: Is the impugned evidence properly admissible evidence, or is it frivolous, irrelevant or improper information that should be struck pursuant to Rule 3.68(4)?

HELD: For the Applicant Alberta Forestry, several portions of the Affidavits struck.

Reliability, Necessity, and Prejudice: The interlocutory nature of interim motions does not relieve a litigant of compliance with the rules of evidence. Evidence must be necessary, in that it is useful to prove a fact relevant to the issues in the case and reasonably reliable to be admissible. These factors are fluid such that, if evidence is highly necessary, the requirement for reliability may be relaxed.

1. Even where evidence is reliable and necessary, it may be excluded on the basis that its probative value is outweighed by its prejudicial effect. Prejudice can arise not only from evidence that works against a party's interest, but from "evidence that potentially undermines an accurate result, or complicates, frustrates, or...