Kahrmann v. Kurylak

Kahrmann v. Kurylak Court Supreme Court Date 2021-02-24 Citation 2021 NSSC 67 Docket Bridgewater, No. 480410 Judge/Registrar/Adjudicator Rowe, Diane (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Kahrmann v. Kurylak, 2021 NSSC 67 Date: 20210224 Docket: Bridgewater, No. 480410 Registry: Halifax Between: Christine Kahrmann Applicant v. Roman Kurylak, Sonja Francine Kurylak-Simons and Erich Kesselring Respondents Judge: The Honourable Justice Diane Rowe Heard: August 31, 2020, in Bridgewater, Nova Scotia Counsel: Kathryn M. Dumke, Q.C., for the Applicant Robert Mroz, for the Respondents R. Kurylak and S. Kurylak-Simons John T. Boyle, for the Respondent, E. Kesselring By the Court: [1] This decision addresses motions to strike portions of affidavits filed by each of the parties. The motions were preliminary to the hearing of an application seeking to set aside a foreclosure Order of this Court. Each party submitted numerous objections on the contents of four affidavits, setting out various grounds. [2] Ms. Christine Kahrmann’s application seeks to set aside an order of foreclosure and sale of property she purchased from the respondents Mr. Roman Kurylak and Ms. Sonja Kurylak-Simons, arguing that the foreclosure proceedings were invalid as it was based on an agreement between the respondents to use the foreclosure to acquire her interest in the property. [3] Mr. Roman Kurlyak and Ms. Sonja Kurylak-Simons plead, in response, that the foreclosure and sale to Mr. Erich Kesselring, the subsequent purchaser of the property was properly done in accordance with the law and valid. [4] Mr. Erich Kesselring is joined as a respondent to this application. His response to the application corresponds with that of Mr. Kurylak and Ms. Kurylak-Simons. [5] The parties each request that the Court strike portions of the affidavit evidence of Ms. Kahrmann, Mr. Kurylak, Mr. Ron Muise and Ms. Peggy Sue Muise. [6] Certain portions of affidavits were struck by agreement prior to, and in the course of, the hearing and are noted in this decision. The disposition on the remainder of the objections raised in the motions are set out within. [7] Further, certain documents that were referenced in the motions to strike required translation from German to English. Counsel for the parties provided the Court with a translation of these documents, as Trial Exhibit Book 4, which was relied upon in considering the specific objection raised. ISSUES 1. Hearsay 2. Relevance 3. Inflammatory Purpose 4. Argument 5. Speculation 6. Opinion 7. Character evidence ANALYSIS [8] Civil Procedure Rule 39.04(1)(2) and (5) provides as follows: 39.04 Striking part or all of affidavit (1) A judge may strike an affidavit containing information that is not admissible evidence, or evidence that is not appropriate to the affidavit. (2) A judge must strike a part of an affidavit containing either of the following: (a) information that is not admissible, such as an irrelevant statement or a submission or plea; (b) information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by evidence of the source and belief in the truth of the information. and (5) A judge who strikes parts, or the whole, of an affidavit must consider ordering the party who filed the affidavit to indemnify another party for the expense of the motion to strike and any adjournment caused by it. [emphasis mine] [9] Davison, J., in Waverley (Village Commissioners) v. Nova Scotia (Minister of Municipal Affairs) [1993] NSJ No 151, articulated a set of principles concerning affidavit evidence that continue to guide jurists considering motions to strike affidavit evidence. They are at paragraph 20: [20] It would be helpful to segregate principles which are apparent from consideration of the foregoing authorities and I would enumerate these principles as follows: 1. Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissable [sic] material. An affidavit should not take on the flavour of a plea or a summation. 2. The facts should be, for the most part, based on the personal knowledge of the affiant with the exception being an affidavit used in an application. Affidavits should stipulate at the outset that the affiant has personal knowledge of the matters deposed to except where stated to be based on information and belief. 3. Affidavits used in applications may refer to facts based on information and belief but the source of the information should be referred to in the affidavit. It is insufficient to say simply that "I am advised". 4. The information as to the source must be sufficient to permit the court to conclude that the information comes from a sound source and preferably the original source. 5. The affidavit must state that the affiant believes the information received from the source. [10] Counsel for both respondents joined in citing these governing principles in their respective submissions. [11] The Waverley principles were more recently referenced by Justice Fichaud in Canadian Imperial Bank of Commerce v. CNH Capital Canada Ltd. 2013 NSCA 35. Fichaud, JA, at paragraphs 80-86 of the decision demonstrated a nuanced and contextualized approach when considering motions to strike affidavit evidence, when, as is also the situation before this Court, objections are raised on the basis the evidence is argumentative, speculative, or irrelevant: [80] I have quoted the statements in the affidavits of Messrs. Bayne and Tucci [above, para 67(a)] that the identity of the other party to the subordination is “essential” to the Bank. At the hearing before the motions judge, CNH Capital Canada objected that these statements were inadmissible. The motions judge dismissed the objection and allowed those paragraphs to stand as evidence. In the Court of Appeal, CNH Capital Canada’s Notice of Contention challenges the admissibility of the statements on two bases. [81] First: CNH Capital Canada says that the statements are a “submission” or “plea” which must be excluded under Civil Procedure Rule 39.04(2): 39.04 (2) A judge must strike a part of an affidavit containing either of the following: (a) information that is not admissible, such as an irrelevant statement or a submission or plea; CNH Capital Canada submits that Rule 39.04(2) codifies Justice Davison’s statement in Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 1993 NSSC 71 (CanLII), 123 N.S.R. (2d) 46: [20] It would be helpful to segregate principles which are apparent from consideration of the foregoing authorities and I would enumerate these principles as follows: 1. Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material. An affidavit should not take on the flavour of a plea a summation. [82] I agree with Justice Davison’s statement from Waverley. But I disagree that the challenged statements in the affidavits of Messrs. Bayne and Tucci are a “submission” or “plea”. What is objectionable under Rule 39.04(2)(a) is a conclusory statement that embodies or assumes a point of law. Whether, how, and the degree to which Ford Credit’s identity was important to the Bank are questions of fact, as I have explained earlier (para 63). [83] CNH Capital Canada submits the impugned statements are objectionable because they address “the very conclusion that CIBC asks the Court to draw” - i.e. the importance of identity to the Bank. I disagree that this renders the evidence inadmissible. If the evidence addresses a fact - and here it does - it does not become inadmissible just because the evidence is targeted and the fact is central. The impugned evidence is no more objectionable, in this respect, than is the affidavit of Mr. Trudelle, (quoted above, para 12) which says, in paras 12 and 13, “[f]rom June 30, 1991, onward I provided my services as a seconded employee to the Partnership” and “[a]t all material times it was my understanding I was acting on behalf of the Partnership”. Mr. Trudelle’s statements directly address the very conclusion CNH Capital Canada asks the Court to draw on the “authority” issue. [emphasis mine] [84] CNH Capital Canada observes that the statements in the affidavits of Messrs. Bayne and Tucci do not contain particulars or examples to bolster or corroborate their statements of what was “essential” to the Bank. The absence of particulars may, or may not, affect the weight to be given to the evidence by the trial judge. But the statements remain evidence of a fact, and embody neither a conclusion of law, nor a submission and plea. [85] Second: CNH Capital Canada submits that the impugned paragraphs are evidence of irrelevant subjective intention. CNH Capital Canada’s factum summarizes its point: 53. To conclude on this point, CNH Capital submits that the identity exception to the undisclosed principal rule only applies when as a matter of contractual interpretation the identity of the parties is vital to the parties. Since there is no express term on this allegedly vital point in the ICA, the Court must examine the circumstances surrounding the contract. This is an objective exercise. What CIBC considered essential is not admissible as part of this inquiry. [Emphasis in factum] In oral argument to this Court, CNH Capital Canada’s counsel cited the parol evidence rule to support the exclusion of the statements in the affidavits. [86] I respectfully disagree. Earlier (para 59) I quoted the principles from Fridman’s, Canadian Agency Law. Under what Professor Fridman describes as the “Personality” qualification, the questions will include whether the Bank had “personal reasons” to contract with “Ford Credit”, whether the Bank was “relying on something personal” and whether that factor “induced” the Bank to contract with Ford Credit, to the exclusion of others. No doubt the wording of the Inter-Creditor Agreement, and an objective examination of the circumstances surrounding that contract will play a significant role in the analysis. But internal Bank evidence also is relevant to whether the Bank was “relying” on, or “induced” by “personal reasons”. [emphasis mine] [12] With this in mind, I will address each Affidavit in turn, noting the objection, response and disposition on each objection made. [13] Mr. Kurylak’s affidavit, dated September 30th, 2019, was the focus of various objections by Ms. Kahrmann. [14] At paragraph 35, Mr. Kurylak alludes to “… advice we received from counsel at the time.” Ms. Kahrmann’s objection is to content, based on hearsay and that “advice received from counsel ” is an attempt to add legitimacy to their actions as it continues with the phrase “which we relied upon at all times”. Counsel for the Kurylaks have not been subpoenaed to testify to corroborate the advice given. The implication is that the respondents acted on the advice of counsel in regard to the foreclosure and sale. [15] Mr. Kurylak’s response is that this is appropriate, as it is information entirely within the witness’ knowledge, and is offered for the statement alone. [16] It appears to the Court that the addition of the phrase, “… which we relied upon at all times”, does speak to the affiant’s knowledge and is held to be admissible. [17] Ms. Kahrmann objects to paragraph 37, again citing the hearsay rule. In this paragraph Mr. Kurylak states that a Dr Richter “… informed me that he held a power of attorney.” in relation to Ms. Kahrmann’s interests. Dr Richter is not a witness. The applicant’s argument is that this statement concerning what Mr. Kurylak states he heard from Dr Richter is inadmissible hearsay, and is offered for proof of the truth of its content, not as a statement made. [18] Mr. Kurylak’s response (citing Soup Pot Ideas Inc. v. Urban Spaces Lit 2015 NSSC 317 at paras 32-38) is that this statement refers to what he heard Dr. Richter say about a power of attorney, and is a statement not offered for its truth, but that it was said by Dr. Richter. [19] Mr. Kurylak requests that the Court consider Soup Pot Ideas, supra, where Arnold, J., at paragraph 36 to 38, writes: [36] Soup Pot argues that the statement at issue, respecting permission to install the door, is not tendered for the truth of its contents but merely for the fact of the statement having been made. Soup Pot says the comments of Mr. Strug themselves are the facts and were introduced only to prove that they were said by Mr. Strug. Soup Pot says the comments therefore are not hearsay and are admissible. [37] In The Law of Evidence in Canada, supra, the authors state: 6.303 Where words which, when spoken, effect a legal result. The truth of the statement is immaterial, the only issue being whether the statement was made. Unfortunately, some have treated such statements as hearsay and have justified their admissibility as forming part of the res gestae. This, however, ignores the purpose for which the out-of-court assertion is tendered. It is only hearsay if it is put forth to prove the truth of the statement, but not otherwise. When the statement itself constitutes a fact in issue, any analysis of the doctrine of res gestae is a confusion of terms. There is obviously not only no necessity for using a shadowy phrase like res gestae to cover the admission of this kind of evidence but also every reason for not doing so. For example, in an action for breach of contract, the testimony of a witness as to statements he had heard which constituted the offer of acceptance or revocation is admissible under the issue. Similarly, with the words of an alleged slander in an action for defamation. Therefore it only makes for uncertainty to talk about res gestae in such cases. [38] I agree with Soup Pot. The truth of Mr. Strug’s statements to Mr. Rankin regarding the installation of the door is immaterial. The unrefuted evidence is that such comments were made, and that Soup Pot acted on that basis. The assertions made by Mr. Strug are not hearsay. The comments of Mr. Strug regarding the installation of the door are admissible as original evidence. [20] The applicant has the opportunity to cross-examine Mr. Kurylak on the statement attributed to Dr Richter, in Court. Further, the applicant may choose to call Dr. Richter as a witness, as the application has not yet been heard. [21] The Court finds that paragraph 37 is admissible and should not be struck on the basis of the hearsay objection. It is offered as a statement made by a third party, and not relied upon as to the truth of its contents concerning the existence or validity of a power of attorney. [22] In sequence, paragraph 38 refers to Mr. Kurylak’s knowledge that Dr. Richter and his wife were “close friends” of the applicant. Ms. Kahrmann’s objection to this statement is that Mr. Kurylak is not disclosing the source of his knowledge or belief for the statement. [23] Mr. Kurylak submits this is information within the knowledge of Mr. Kurylak and there is no need for him to identify the source of his personal knowledge. I agree, and Mr. Kurylak may be cross examined on the statement more fully in the application hearing. AFFIDAVIT OF RON MUISE [24] Mr. Kesselring submitted Mr. Ron Muise’s affidavit, dated September 27th, 2019. Mr. Muise was engaged in maintenance work. Ms. Kahrmann raised objections to its contents as follows. [25] Mr. Kahrmann objected to paragraph 6 , in which Mr. Muise referred to a conversation with Mr. Kesselring, though cross examination of both Mr. Muise and Mr. Kesselring was available on this paragraph. Mr. Kesselring’s response is that the statement is not provided for the truth of its contents but for the fact it was said. Both parties acknowledge and anticipate cross examination on this paragraph. In the hearing of the motions, Ms. Kahrmann withdrew her objection. [26] Ms. Kahrmann raised an objection to paragraph 7 as there was no basis for Mr. Muise’s statement disavowing knowledge of an agreement between Mr. Kesselring or the Kurylaks. Mr. Kesselring indicates that the applicant has not raised a specific objection, but that Mr. Muise is offering the statement that he is not aware of any agreements. Mr. Kesselring submits it should remain. [27] It is an unusual statement to read in an affidavit, as Mr. Muise is providing evidence of what he has not heard, rather than a positive statement of what was said or done as fact. It is, essentially, an attempt to establish a non-fact as a relevant fact. [28] Various attempts were made by Mr. Kesselring and Ms. Kahrmann to address the relevance, scope or purpose of the statement. Frankly, I do not find that it is “relevant fact”, and almost a perverse form of hearsay, as the negative statement attempts to support a positive inference that there was no agreement between the respondents. These two sentences of paragraph 7 should be struck: “At no time did Mr. Kesselring say anything to me that would indicate that he was conspiring with the Kurylaks to defraud Ms. Kahrman. [sic] Further, he never indicated to me that he had any knowledge of any issues with the foreclosure process.” [29] Ms. Kahrmann seeks to strike a statement concerning an unnamed caretakers awareness at paragraph 9, as the person is not named nor is there a basis for an assertion of what the person did or did not know. Mr. Kesselring agreed that the second sentence in the paragraph be struck, requesting that Mr. Muise be allowed to address the second sentence in viva voce evidence in advance of his cross examination. While that is possible, another route is that Mr. Kesselring’s counsel may file an amended affidavit addressing this in advance of the hearing. I am striking the second sentence. [30] Ms. Kahrmann seeks to strike an expressed opinion within paragraph 14 regarding Ms. Kahrmann’s state of mind and seeks to strike the remainder of the paragraph after the words “focused on cleaning”. Mr. Kesselring agreed that this portion may be struck in correspondence with the court filed prior to hearing. AFFIDAVIT OF PEGGY-SUE MUISE [31] Mr. Kesselring submitted Ms. Peggy-Sue Muise’s affidavit, dated September 27th, 2019. [32] Ms. Kahrmann objects to the contents of paragraph 9 on the basis of hearsay, but acknowledged cross examination is possible on this paragraph. Mr. Kesselring’s response is that the statement is not provided for the truth of its contents but for the fact it was said. Again, as both parties acknowledge and anticipate cross examination of the witness on this paragraph, it shall remain. [33] Ms. Kahrmann objects to paragraph 10 as the language corresponds identically to paragraph 7 of Mr. Ron Muise’s affidavit. For the reasons set out above, in which I struck two sentences of Mr. Muise’s affidavit at paragraph 7, I will strike the same sentences in Ms. Muise’s affidavit. [34] Paragraph 16 mirrors Mr. Muise’s affidavit evidence. Ms. Kahrmann seeks to strike an expressed opinion and the remainder of the paragraph after the words “focused on cleaning”. Mr. Kesselring agreed that this portion may be struck. AFFIDAVIT OF CHRISTINE KAHRMANN [35] Ms. Kahrmann’s affidavit, dated August 29, 2019 was the focus of several objections by both respondents. [36] Para 12-15: Mr. Kurylak seeks all of paragraphs 12 – 15 struck in their entirety, submitting that the basis is irrelevant and inflammatory. The contents of these paragraphs concern matters involving the respondent and allegations of breaches of the federal Fisheries Act, and are intertwined with Ms. Kahrmann’s recounting of the circumstances surrounding the execution of the mortgage on the property, and a related indemnity. [37] I have reviewed these paragraphs, and considered Canadian Imperial Bank of Commerce v. CNH Capital Ltd, supra, at para 86, specifically. In this matter, Ms. Kahrmann is pleading that the contractual relationship between the parties, established by the initial purchase and sale agreement, with the mortgage and a related indemnity, was adversely affected by a subsequent arrangement between the respondents concerning a foreclosure and sale of the property. This would require an objective examination of the circumstances surrounding the contracts and dealings with the property, as this will play a significant role in the analysis of Ms. Kahrmann’s claim. Paragraphs 12-15 will remain in the affidavit as they are relevant. [38] At paragraph 16, Mr. Kurylak seeks the term, “…(the “Embezzlement”)” be struck. It is a defined term not used elsewhere in the Affidavit except for paragraph 45, which is also objected to as inflammatory. Ms. Kahrmann agreed, in the course of hearing the motions, to this term being struck in this paragraph. The disposition of paragraph 45 is set out below. [39] Mr. Kurylak seeks the entire paragraph 20 be struck, as it is irrelevant, hearsay and inflammatory. The letter referenced within this paragraph is Exhibit 6 to Ms. Kahrmann’s affidavit. Mr. Kurylak is not seeking that the letter be taken out of the record. Ms. Kahrmann’s counsel proposed some slight amendments to the paragraph, however, on reading the attached letter, I find that the content of the paragraph is not relevant and will be struck in its entirety. [40] Mr. Kurylak requests that the phrases in paragraph 25, “…with the intent to ensure” and then the portion “… and to deprive me of the equity of redemption which at that time, when calculated on the original purchase price for the real property amounted to $272,880.00”, be struck on the basis that the statements are argument and speculation. I agree with Mr. Kurylak’s submissions on this point as the first phrase is argument, and outside Ms. Kahrmann’s personal knowledge, and the second phrase is speculative as to value. [41] Mr. Kurylak seeks to strike the entirety of paragraph 26 as argument. Ms. Kahrmann’s response was to agree with striking the phrase “…instead of entering into negotiations with Kahrmann to ensure Kahrmann received her portion of the value…” with the remainder of the affidavit to remain. I agree with Mr. Kurylak’s submission on the paragraph, and the slight amendment does not address the argumentative aspect of the entire paragraph, and the paragraph is struck. [42] At paragraph 27, the phrase, “…the scheme and….” , is objected to. Mr. Kurylak seeks to strike this phrase as argument and speculation. Ms. Kahrmann agreed. This phrase is struck by agreement. [43] Mr. Kurylak requests that the entire paragraph 29 be struck, and Exhibit 10 to be taken out of the record, as it is irrelevant and inflammatory. Ms. Kahrmann indicates that the correspondence referenced in the affidavit, with the letter as the Exhibit, are relevant as they form part of the circumstances between the parties’ contractual relationship and related facts concerning the property. [44] Paragraph 29 references matters first raised in paragraphs 12-15, which I have found are relevant to the proceeding. This paragraph will remain, as will the letter referenced. [45] Mr. Kurylak also raised an alternative objection to this paragraph and to paragraphs 12-15, citing that the content was character evidence and would be improper if admitted. He relies upon the decisions of the courts in Deep v. Wood, 1983 CanLii 3101 (ON CA), and Saskatchewan v. Racette, 2020 SKCA 2, to orient the Court to the general principle that, in civil matters, evidence related to character is generally inadmissible. [46] Ms. Kahrmann’s response on this point is that the allegations concerning Mr. Kurylak’s use of the property and possible contravention of the federal Fisheries Act is not tendered as evidence intended to speak to the respondent’s character, but is instead information inextricably linked with the circumstances surrounding the transactions associated with the property. [47] Ms. Kahrmann’s submission on this portion of her affidavit is then, admittedly, intended to be limited on her own representation and, accordingly, may have little weight. With this in mind, it will remain. [48] Mr. Kurylak seeks the entirety of paragraph 42(h) to be struck as it is legal argument. Ms. Kahrmann’s agrees that the phrase “…as required by the Evidence Act of Nova Scotia”, be struck with the remainder to stay. I agree that this phrase is argument and is struck, and the remainder of the paragraph is unchanged. [49] Mr. Kurylak submits the entirety of paragraph 42(k) is to be struck, as it is legal argument. In making a determination on the objection to paragraph 37 of Mr. Kurylak’s affidavit, in which a statement concerning a power of attorney by a third party was made to the respondent, I found that the statement was admissible and not hearsay. It is for similar reasons that I find this paragraph should remain in Ms. Kahrmann’s affidavit. [50] As Ms. Kahrmann submitted, the statement of her deceased counsel is offered (paragraph 42(k)), not for its truth, but as it formed the basis of her later actions in regard to the foreclosure proceeding that took place. Ms. Kahrmann retained new counsel on her behalf to pursue the present application. [51] The third party in this paragraph who made the statement was the late Mr. Russell Cushing, who had provided legal services in the matter. Mr. Cushing can not be examined as to his statement, but Ms. Kahrmann may be. The paragraph will not be struck. [52] Mr. Kurylak seeks to strike paragraphs 45 and 46, on the basis that they are irrelevant and inflammatory. Ms. Kahrmann’s response was that the two paragraphs establish a potential motivation for Mr. Kesselring in regard to participation in the foreclosure proceedings. [53] I agree that paragraph 45 is irrelevant to the proceeding and is struck in its entirety. [54] In regard to paragraph 46, Ms. Kahrmann is open to cross examination on this point, and Mr. Kesselring may be examined on this as well in the course of the hearing. [55] Mr. Kurylak initially submitted that the entire paragraph 47 should be struck as it is speculation and argument. Ms. Kahrmann submits that striking the portion “… and had conspired with the Respondents…that existed in the property that I owned” responds to the issues raised by Mr. Kurylak. I find that striking this portion of the affidavit is appropriate, and the remainder of the paragraph was not contested by Mr. Kesselring. [56] Mr. Kesselring seeks the entirety of paragraph 48 to be struck, as argumentative, opinion and speculation. Ms. Kahrmann’s response is that the paragraph is a paraphrase of an email, dated October 2, 2018, between Sonja Francine Simons, but written by Roman Kurylak, to Erich Kesselring. The email is in German, with the translation provided jointly by counsel to the Court. [57] Mr. Kesselring submits that the paragraph is editorializing on the content of the email but agrees that the exhibit referenced within the paragraph should remain as evidence. [58] The initial phrase of the paragraph beginning with, “Moreover, Kesselring acceded to…”, should be struck and the remainder of the paragraph from “… the suggestion of the Respondent Kurylak…” to the end should remain. On reviewing the translation, the statement reflects Ms. Kahrmann’s understanding of the content of the email, which is attached as an exhibit. [59] Mr. Kesselring seeks the portion of paragraph 52 from, “…which at the time of the acquisition constituted $100,000 in equipment and furniture…” be struck as opinion evidence outside the expertise of a lay witness. Ms. Kahrmann’s response is that this portion of the affidavit is taken from the Agreement of Purchase and Sale and is part of the evidence before the Court. I agree with Mr. Kesselring’s submissions on this point, as issues concerning valuation of the property at the time of the foreclosure are not fully within Ms. Kahrmann’s ability as a lay witness. [60] As well, Mr. Kesselring seeks the phrase “…required to prove portions of my case…” be struck as constituting legal argument. Ms. Kahrmann’s response to this is that as much evidence (potential, but not proven) was disposed of by Mr. Kesselring that would have assisted in conduct of the case, it is a statement of fact as to the conditions under which she must conduct her case. That seems somewhat conclusory to me and is argumentative. I agree that this phrase should be struck. [61] The portion of paragraph 56, beginning from the phrase “which lead me to…” and ending at “….no discernible reason.” is objected to by Mr. Kurylak, as he submits its content is speculation and hearsay. Ms. Kahrmann did agree with Mr. Kurylak in part, that the portion “…which lead me to believe…” to the end of the paragraph be struck with the remainder to stay. [62] Mr. Kurylak seeks to strike the phrase “…and had an approximate market value of $500,000 or above.” as opinion evidence offered by Ms. Kahrmann, without basis or qualification of paragraph 57. Ms. Kahrmann’s response is that the amount in Canadian dollars is informed by negotiation with prospective buyers prepared to pay more that that amount. However, this response is argument made by counsel, in the hearing, and not in the affidavit. There is no basis established for the statement to stand and it will be struck. RELATED AFFIDAVIT [63] Counsel for the Kurylaks requested that all corresponding portions of statements made in an affidavit of Ms. Kahrmann, dated August 3, 2018, that was filed in regard to an ex parte application, also be struck in a corresponding manner. [64] Mr. Kesselring also seeks that paragraph 45 of Ms. Kahrmann’s affidavit of August 3, 2018, be struck in the same manner. The content is similar to the paragraph considered above, stating a value “…which at the time of the acquisition constituted $100,000 in equipment and furniture…”. As well, Mr. Kesselring seeks the corresponding phrase “…required to prove portions of my case…”, be struck. [65] I have not received a request by Ms. Kahrmann to enter the August 3, 2018, affidavit. Rule 39.06(2) and (3) of The Nova Scotia Civil Procedure Rules requires the Court’s approval for use of the affidavit filed in the ex parte proceeding if Ms. Kahrmann intends to rely upon the affidavit in this application. If such a request is made, then similar considerations will apply to the contents, with a direction to be given at that time. COSTS [66] I heard from counsel for all parties in regard to costs. [67] There were occasional agreements on amendments to the affidavits made prior to, and in the course of, hearing the motions These agreements were made in regard to Ms. Kahrmann’s affidavit and Mr. Muise and Ms. Muise’s affidavit. There were no amendments agreed upon concerning the contents of Mr. Kurylak’s affidavit. [68] Ms. Kahrmann and Mr. Kurylak were each partially successful in response to the motions to strike. Mr. Kesselring shared in Mr. Kurylak’s objections, while achieving partial resolution on specific matters raised in his submission. [69] As all parties achieved mixed results in their motions, I award costs in the cause for all parties, applying Tariff “C” of the Civil Procedure Rules, in the amount of $750. CONCLUSION [70] The hearing and disposition of the preliminary motions was affected by the Covid 19 pandemic, as witnesses reside in Europe. Translations of affidavit exhibits were filed with the Court on the day of hearing the motions to strike. [71] Translation services for German and English will be required for the hearing. Both the applicant and respondents indicated their interest in cross examining all witnesses on the affidavits filed, after the objections to the affidavit evidence were addressed by the Court. [72] The hearing of the application was adjourned on my motion, to ensure that the proceedings could be set down in a manner to ensure appropriate participation by the witnesses and parties, with assured remote access and translation. The Court will contact counsel with a date for a conference to set down the hearing. Rowe, J.