Brine v. Industrial Alliance Insurance and Financial Services Inc.

Brine v. Industrial Alliance Insurance and Financial Services Inc.

The affidavit of Professor Feldthusen was struck because it constituted opinion evidence lacking proper foundation, largely consisted of sworn argument addressing the ultimate issues of the proposed appeal, was not helpful or relevant to determining whether the leave application raised a matter of public importance under s.40(1), and improperly attacked the correctness of the Court of Appeal decision; accordingly the motion to strike was granted under Rule 89.

Citation
2016 SCC 9
Parties
Applicant/respondent on the Motion: Bruce Brine; Respondent/applicant: Industrial Alliance Insurance and Financial Services Inc.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
25 February 2016
Procedural Posture
Application for Leave to Appeal / Motion to Strike Affidavit in Support of Leave Application
Outcome
Motion granted
Legal Topics
Motion to Strike Affidavit, Affidavit Admissibility and Foundation, Leave to Appeal (public Importance), Punitive Damages, Bad Faith Insurance Conduct, Expert Opinion Evidence
Source Language
English
Civil Procedure Evidence Insurance Law Contract Law Remedies Motion to Strike Affidavit Affidavit Admissibility and Foundation Leave to Appeal (public Importance) +3 more

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Parties

Bruce Brine

Applicant/respondent on the Motion

Industrial Alliance Insurance and Financial Services Inc.

Respondent/applicant

Procedural Posture

Application for Leave to Appeal / Motion to Strike Affidavit in Support of Leave Application

Legal Issues

  1. 1 Whether the expert affidavit filed in support of the leave application is admissible under Rule 89
  2. 2 Whether opinion evidence lacking foundation and consisting of argument is properly struck at the leave stage
  3. 3 Whether affidavit evidence is helpful or relevant to the Court in deciding if an issue is of public importance for leave to appeal

Ratio Decidendi

The affidavit of Professor Feldthusen was struck because it constituted opinion evidence lacking proper foundation, largely consisted of sworn argument addressing the ultimate issues of the proposed appeal, was not helpful or relevant to determining whether the leave application raised a matter of public importance under s.40(1), and improperly attacked the correctness of the Court of Appeal decision; accordingly the motion to strike was granted under Rule 89.

Court Disposition

Motion granted

Orders

  • Affidavit of Professor Bruce Feldthusen struck
  • Portions of the applicant's memorandum of argument referring to the affidavit struck