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CIVIL EVIDENCE - Admissibility - Affidavits - Striking out

Friday, November 01, 2019 @ 6:21 AM  


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Application by Canada and British Columbia to strike portions of the record filed by Alberta. Application by Progress Alberta Communications and Canadian Constitutional Foundation to intervene. The reference sought the court’s opinion on the constitutionality of the federal Greenhouse Gas Pollution Pricing Act. Similar references had already occurred in Saskatchewan and Ontario. Alberta filed an affidavit of Savage, the Assistant Deputy Minister of the Climate Change Division of Alberta Environment and Parks, that attached several academic articles and supporting documentation relating to the regulation of greenhouse gases. Savage was not qualified as an expert. Progress Alberta was a non-profit organization that identified environmental concerns as one of its main priorities. The Canadian Constitutional Foundation was a national organization whose mandate was to defend and promote the Constitution of Canada. It provided pro bono counsel in constitutional challenges and intervened in constitutional cases.

HELD: Applications dismissed. The challenged exhibits were opinion evidence and hearsay and were beyond what could be judicially noticed. Although the proceeding was a reference, it was presumed that all the rules of evidence and procedure that were normally applied by the court were still engaged. Whether and to what extent the panel was prepared to consider the evidence was to be decided by the panel who heard the reference. The disputed evidence was to remain on the record until the end of the substantive argument, when its admissibility would then be decided. The proposed intervenors did not have any expertise in the issues raised in the reference. They could not bring forward a perspective that would not be brought by the principal parties or other intervenors.

Reference re: Greenhouse Gas Pollution Pricing Act (Can.), [2019] A.J. No. 1258, Alberta Court of Appeal, F.F. Slatter J.A., September 23, 2019. Digest No. TLD-October282019015