Part 1: Review the Court’s guidance on the content of affidavits and the Court’s discretion to strike portions of affidavits.
La Calamita v. La Calamita, 2024 ONSC 4219 (CanLII)
This is the first of three posts on La Calamita v. La Calamita. In this post, we review the Court’s guidance on the content of affidavits and the Court’s discretion to strike portions of affidavits.
Leonard La Calamita passed away in 2018. His wife Rose died 32 months after him, in 2020. Their three children, John, Nadine and Diane (“the Children”) became embroiled in litigation. The case does not indicate to what extent Nadine was involved in the litigation.
Under the terms of Leonard’s and Rose’s wills, the three Children were equal residuary beneficiaries. Leonard appointed John as his trustee. Rose appointed John and Diane as co-trustees.
When she died, Rose owned a home on Lord Seaton Road in Toronto (“Lord Seaton”). Leonard’s Estate consisted primarily of a commercial property on Yonge Street in Toronto (“Yonge Street”). Diane wanted to acquire Lord Seaton. John and Nadine wanted to acquire Yonge Street. Either outcome would require the ultimate property owner(s) to pay a compensatory amount to the other sibling(s).
As of 2023, the Children had filed 5 applications. Two were settled in 2022. On July 26, 2024 Justice Sanfilippo rendered a decision respecting the three applications that had not been settled. The three applications were:
- Filed by John: That upon payment by John to Diane of $485,000, she would have no other claims to Leonard’s Estate or against her siblings, and Yonge Street would vest in John and Nadine.
- Filed by Diane: That John be removed as Estate Trustee of Leonard’s Estate, that a neutral estate trustee be appointed or in the alternative, that a disinterested trustee would administer the sale of Yong Street and that John’s application (above) be dismissed.
- Filed by John: That he be issued a Certificate of Appointment of Estate Trustee with a Will for Leonard’s Estate (he had filed for one, but Diane filed an Objection).
By consent, the applications were heard together in February 2024.
The evidence before the Court included two affidavits filed by John, an affidavit filed from Colliers Realty (in support of John) and five affidavits filed by Diane. Both John and Diane attached affidavits they had previously filed as exhibits to newly filed affidavits.
Under Rule 4.06(2) of the Civil Procedure Rules of Ontario, affidavits “shall be confined to the statement of facts within the personal knowledge of the deponent.” Under Rule 25.11, the Court has the the discretion to strike out a pleading or other document that may prejudice or delay a fair trial; is scandalous, frivolous or vexatious; or is an abuse of the court’s process. In applications, an affidavit is a “pleading,” so it can be dealt with under Rule 25.11.
John and Diane both sought pre-emptively to strike portions of the filed affidavits, objecting to the content of 135 out of 288 paragraphs of affidavit evidence. The motions under Rule 25.11 were considered on the basis of written submissions.
The Court sets out an excellent summary of the law on relevance and admissibility, and by extension, on how a Court might deal with evidence that is neither, because it is irrelevant or scandalous evidence, inadmissible argument, or hearsay.
On the issue of relevance, the Court found that both parties filed irrelevant evidence, including evidence related to Rose’s Estate, which was not at issue; evidence about some family relationships; evidence as to motivation; and settlement discussions, among other things.
The Court notes that Rule 25.11 does not permit evidence to be stricken on the grounds of irrelevance alone. The Rule can be used to deal with irrelevant evidence only if it is also with the categories of evidence that Rule 25.11 cites.
The Court surveys caselaw and summarizes what is a “vexatious” or “scandalous” pleading: it is one that “seriously impugns the behavior of a party,” “has no effect on the outcome of an action,” “refers to indecent or offensive matters or allegations for the purpose of abusing or prejudicing the opposite party” or which are “unbecoming of the court to hear, or other unnecessary allegations bearing cruelly on the moral character of an individual or are offensive allegations and rhetoric directed at a party.” The Court struck evidence from the affidavits that dealt with character, personality and fitness. This evidence did not affect the outcome of an issue to be determined, and was scandalous in that it unnecessarily impugned a party’s character.
The Court also struck evidence that was deemed to be filed to advance an argument, rather than evidence of fact. The court notes that “argument is reserved to a factum” (at paragraph 31), not an affidavit. It struck 32 paragraphs from the affidavits on this basis.
Finally, the Court considered the issue of hearsay evidence in affidavits. Hearsay evidence is an “out-of-court statement tendered for the truth of its contents” (at paragraph 34) and it is presumptively inadmissible unless it falls within a principled “hearsay exception” that allows it to be admitted because it will advance the Court’s goal of fact-finding. A principled exception can be made for evidence that has been tested and found to be necessary and reliable. For both John and Diane, evidence that they filed about what their parents stated about their intentions or plans for their properties was excluded.
This case provides any litigant with excellent guidance on how to distill the affidavit evidence they want to file at an early stage of drafting. This will help avoid challenges under Rule 25.11 as well as assist the Court in its fact-finding, based on relevant and admissible evidence, and not evidence about long-standing grievances or resentments. The case is also an important reminder about the distinct functions of different types of Court filings, here the evidentiary (the affidavit) and the argumentative (the factum).
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