Tymkin v. Ewatski et al.,

• Jurisdiction: Manitoba
• Judge: Beard, J.
• Neutral Citation: 2001 MBQB 246
• Citation: (2001), 158 Man.R.(2d) 204 (QB),2001 MBQB 246,[2001] MJ No 415 (QL),158 Man R (2d) 204,158 ManR(2d) 204,158 Man.R.(2d) 204,(2001), 158 ManR(2d) 204 (QB),[2001] M.J. No 415 (QL)
• Date: 27 September 2001
• Court: Court of Queen's Bench of Manitoba (Canada)

Tymkin v. Ewatski (2001), 158 Man.R.(2d) 204 (QB)

MLB headnote and full text

Temp. Cite: [2001] Man.R.(2d) TBEd. OC.010

Randy Tymkin (plaintiff) v. Chief Jack Ewatski, Cst. F. McIntosh and Cst. M. Carvalho (defendants) and The Government of Manitoba (third party)

(CI 99-01-14965; 2001 MBQB 246)

Indexed As: Tymkin v. Ewatski et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

September 27, 2001.

Summary:

The plaintiff and defendants each filed motions for summary disposition of parts of the plaintiff's claim. The defendants moved to strike out portions of the plaintiff's affidavit on the basis that it contained argument, opinion and hearsay.

The Manitoba Court of Queen's Bench expunged portions of the plaintiff's affidavit.

Practice - Topic 3603

Evidence - Affidavits - General - Contents of - The plaintiff and defendants each filed motions for summary disposition of parts of the plaintiff's claim - The defendants moved to strike out portions of the plaintiff's affidavit - The plaintiff argued that as his motion included a request for an order under rule 20.06(1)(a) that "the facts alleged in the statement of claim are not in dispute", he must be allowed to adduce evidence in support of the allegations in the statement of claim - The Manitoba Court of Queen's Bench found several difficulties with the plaintiff's argument - First, the plaintiff's counsel had not differentiated between facts and conclusions of fact or law, all of which might appear in a pleading but only the first of which should be in an affidavit - Second, the court should only deal with matters that were at issue - Third, the plaintiff's motion was more limited than his statement of claim - Lastly, an affidavit was not a pleading, so it should not attempt to correspond to the allegations in the pleadings - See paragraphs 12 to 16.

Practice - Topic 3628

Evidence - Affidavits - Making of - Affidavit of information and belief - General - [See Practice - Topic 3664 ].

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - In determining whether to strike a sentence of an affidavit, the Manitoba Court of Queen's Bench stated that "[t]his sentence is an example of very poor draftsmanship, in that the source of the hearsay is not clearly disclosed, but must be implied from the next following sentence, and the only declaration of a belief in the truth of the statement is a blanket statement in paragraph 1 of the affidavit. Although the paragraph is poorly drafted, I am not going to expunge the sentence for its failure to meet the technical rules for admissibility of hearsay evidence, as, with a little work, the required basis for the statement can be found. I would, however, encourage counsel to be more precise in the future" - See paragraph 18.

Cases Noticed:

Schnell v. Schnell and Crosbie (1983), 25 Man.R.(2d) 151 (Q.B.), refd to. [para. 8].

Sutton v. Sutton (1985), 33 Man.R.(2d) 78 (Q.B. Fam. Div.), refd to. [para. 8].

Saan Stores Ltd. v. Reebok Canada Inc. et al. (1996), 111 Man.R.(2d) 1 (Q.B. Master), refd to. [para. 8].

McDiarmid Lumber Ltd. v. Star Building Materials Ltd. et al. (1998), 125 Man.R.(2d) 223 (Q.B.), refd to. [para. 8].

Authors and Works Noticed:

Williston, W.B., and Rolls, R.J., The Law of Civil Procedure (1970), generally [para. 8]; vol. 2, pp. 732, 733, 734 [para. 9].

Counsel:

R. Ian Histed, for the plaintiff;

Marvin S. Samphir and Todd W. Hewett, for the defendants;

Rod Garson, for the third party.

This motion was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 27, 2001.