Matta v Matta, 2021 ABQB 826

Court of Queen’s Bench of Alberta Citation: Matta v Matta, 2021 ABQB 826 Date: 20211019 Docket: FL03 61344 Registry: Edmonton Between: Martha Matta Plaintiff - and - Joseph Matta Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice L.K. Harris _______________________________________________________ [ 1 ] This is a family law action which came before me as an application to extend a Queen’s Bench Protection Order (“ QBPO ”) granted by this Court on April 24, 2020.

The application was set for a one-hour viva voce hearing (“ EVV ”) on September 24, 2021. [ 2 ] At the outset of the hearing, Mr. Matta, the Respondent, brought an application to strike significant portions of the Affidavits of Ms. Matta, the Applicant. [ 3 ] I dismiss the application to strike for the reasons that follow.

I. Background [ 4 ] On January 13, 2020, Ms. Matta brought an application for a restraining order without notice against Mr. Matta. The application was granted by this Court the same day. After Mr. Matta was served with the Restraining Order, the parties appeared before this Court on February 18, 2020, and again on April 3, 2020, at which time an oral hearing was directed to proceed on April 24, 2020. Ms. Matta also filed an application for a Queen’s Bench Protection Order on March 30, 2020.

Both parties filed affidavits in support of their positions. [ 5 ] The oral hearing proceeded on April 24, 2020, following which Yungwirth, J. granted a QBPO against Mr. Matta. The terms of the QBPO addressed several issues, including parenting time for Mr. Matta, and was to remain in effect up to and including April 24, 2021 unless terminated or continued by order of this Court. [ 6 ] The parties engaged in further litigation on several family law issues resulting in an appearance before Yungwirth, J., on December 10, 2020. The Honourable Justice Yungwirth reserved her decision. [ 7 ] On April 21, 2021, Ms.

Matta filed an application to extend the QBPO, supported by an affidavit (the “ First Affidavit ”). The application was adjourned to Family Chambers on May 27, 2021, with the QBPO to remain in effect until then. The application was then scheduled for a one-hour oral hearing on September 24, 2021. Mr. Matta filed a responding affidavit on June 29, 2021. [ 8 ] Ms. Matta filed a second affidavit on July 2, 2021 in response to Mr. Matta’s June 29, 2021 (the “ Second Affidavit ”). [ 9 ] At the commencement of the EVV hearing, Mr.

Matta through his counsel advised that he was bringing an application to strike substantial portions of the First Affidavit and Second Affidavit upon which Ms. Matta relied in support of application to extend the QBPO on the basis that they consisted of hearsay, or were expert opinion evidence which did not comply with the Rules , or were argument and not facts, or were irrelevant, or referred to exhibits which consisted of untranslated documents written in Arabic. [ 10 ] Ms. Matta, through her counsel, opposed the application to strike on the basis that he had not been given notice of the application.

She states that had he been given appropriate notice, then she would have had an opportunity to address Mr. Matta’s concerns in advance of her application. Ms. Matta also opposed the application to strike on the basis that the contents of the Affidavits are permissible, proper and relevant. [ 11 ] Mr. Matta, through his counsel, states that he had raised “concerns” about the untranslated documents with Ms. Matta’s counsel several weeks prior, and accordingly, that constituted sufficient notice of the application to strike. II.

Notice [ 12 ] Rule 6.3(1) of the Alberta Rules of Court A/R 124/2010 states: Applications generally 6.3

(1) Unless these rules or an enactment otherwise provides or the Court otherwise permits, an application may only be filed during an action or after judgment is entered.

(2) Unless the Court otherwise permits, an application to the Court must (

a) be in the appropriate form set out in

Schedule A, Division 1 to these rules, (

b) state briefly the grounds for filing the application, (

c) identify the material or evidence intended to be relied on, (

d) refer to any provision of an enactment or rule relied on, (

e) specify any irregularity complained of or objection relied on, (

f) state the remedy claimed or sought, and (

g) state how the application is proposed to be heard or considered under these rules.

(3) Unless an enactment, the Court or these rules otherwise provide, the applicant must file and serve on all parties and every other person affected by the application, 5 days or more before the application is scheduled to be heard or considered, (

a) notice of the application, and (

b) any affidavit or other evidence in support of the application. [ 13 ] Rule 12.43(1) provides that

Part 6, Division 1 of the Rules applies to a proceeding under the Family Law Act , which this is. [ 14 ] Rule 12.44 states:

Application within course of proceeding 12.44(1) Unless otherwise specified, an application in the course of a proceeding or action must be made in accordance with

Part 6,Division 1, subject to the following requirements: (

a) the application must be made by filing a family application in Form FL-18 and an affidavit in support of the application; (

b) the family application and the affidavit in support must be served on the respondent 5 days or more before the date the application isscheduled to be heard or considered. [15] Rule 1.5 also applies: Rule contravention, non-compliance and irregularities 1.5(1) If a person contravenes or does not comply with any procedural requirement, or if there is an irregularity in a commencementdocument, pleading, document, affidavit or prescribed form, a party may apply to the Court (

a) to cure the contravention, non-compliance or irregularity, or (

b) to set aside

an act, application, proceeding or other thing because of prejudice to that party arising from the contravention, non-compliance or irregularity.

(2) An application under this rule must be filed within a reasonable time after the applicant becomes aware of the contravention,non-compliance or irregularity.

(3) An application under this rule may not be filed by a party who alleges prejudice as a result of the contravention, non-compliance orirregularity if that party has taken a further step in the action knowing of the prejudice.

(4) The Court must not cure any contravention, non-compliance or irregularity unless (

a) to do so will cause no irreparable harm to any party, (

b) in doing so the Court imposes terms or conditions that will (

i) eliminate or ameliorate any reparable harm, or (ii) prevent the recurrence of the contravention, non-compliance or irregularity, (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non-compliance or irregularity, and (

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity. [16] Suffice it to say, Mr. Matta has not complied with Rule 6.3 in that no application to strike portions of Ms. Matta’s affidavitswas filed in Form FL-18 setting out, at the very least, the grounds for the application to strike or the irregularities complained of. Further, even though he says he provided notice of the application to Ms. Matta through her counsel, I am of the view that this “notice” isnot compliant with the Rules.

Simply advising opposing counsel of “concerns” regarding the some of the contents of an affidavit doesnot constitute “notice” for the purposes of the Rules. Further, as I understood Mr.

Matta’s counsel, his “notice” referred only to the issueof untranslated documents, and not the remainder of the paragraphs which he now complains of. [17] The purpose of giving notice and compliance with Rule 6.3 is to ensure that a respondent knows of the arguments to beaddressed and to allow the Court to properly prepare for the hearing. [18] Lema, J., provided an overview of the Court’s concerns with non-compliance with the Rules regarding notice in DGS v HAS,2019 ABQB 887 starting at para. 58: In Klein v Wolbeck, Renke J. held: Paragraphs 38 to 43 of Ms Wolbeck’s affidavit of August 4, 2015 (the Wolbeck FLA Affidavit) seek relief for, among other things,retroactive child support, financial disclosure, retroactive partner support, and costs.

I find that there is no cross-application properly before the court respecting retroactive child support or retroactive partner support. Despite rules 1.2(1) and 1.5, I cannot ignore the requirement to provide notice of claimed relief through formal documents contemplatedby the rules of court. Ms Wolbeck was not a self-represented litigant. The claims for relief should have been set out in the appropriateapplication document: see rules 6.3(2) and 12.44. ... [emphasis added] In Athwal v Mather, Dunlop J. held: The application is deficient in two respects.

First, it fails to specify what restricted court access order is being sought. Paragraph 1 of theapplication includes every possible restricted court access order from a publication ban on the names of the parties to an order sealing theentire file. The specifics of the order sought are only apparent from the unfiled draft orders sent to me in July and August. The filedapplication should have included those specifics. Rule 6.3(2)(

f) requires that an application “state the remedy claimed or sought.” Thewording in the application filed July 9 does not provide sufficient notice, particularly to the media, of the relief sought. In Tomco Production Services Ltd v Smith, D.B. Nixon J. held:

The Court turns next to the two remedies that Jimbob and Mr. Smith raised in their Brief but which were not included in the Application. The Court refers to these two additional matters as the fifth and sixth remedies raised. Concerning the fifth remedy raised, the Applicants/Defendants argued for the first time in their Brief that Mr. Smith was not a fiduciary. As noted above, the Application included no such remedy. Further, the Application did not include any claim for relief in respect of the fiduciary matter. On the Application, the Court denied the Applicants/Defendants’ request regarding the fifth remedy.

That denial was based on subsection 6.3(2) of the Alberta Rules of Court, AR 124/2010 (the “ Rules ”), which require applications to state briefly the grounds relied upon, the evidence and the relief sought, among other requirements. The purpose of Rule 6.3(2) is to ensure that a respondent (in this case, Tomco) knows the arguments to be addressed. That Rule also allows the Court to properly prepare for the hearing. While there are some exceptions, those exceptions do not apply in this case. Absent this Rule, both the Respondent and the Court could be blindsided. That is inappropriate.

Our adversarial judicial system operates on a principle of disclosure so that all participants can prepare themselves appropriately. The system does not tolerate an ambush. In Reeves v Grassi , Master Robertson held: There are other procedural objections advanced by the defendants, such as the fact that in respect of an alternative application brought by the plaintiffs (to allow an amendment to the statement of claim pursuant to section 6(4) of the Limitations Act, RSA 2000, c.

L-12 to add OKO, as if OKO had not been sued in the first place) there has been inadequate reference to the appropriate rules, in violation of rule 6.3(2) (

d) which provides as follows: Unless the court otherwise permits, an application to the Court must (

d) refer to any provision of an enactment or rule relied on, ... Violations of this provision in the Alberta Rules of Court are frequent, and it is troubling. The Court is left with the impression that the party applying for relief may be unaware of the applicable rule, or the

section of the statute or regulation that might allow the order to be granted. Sometimes applications say the applicant is relying on “The Builders’ Lien Act” or “The Land Titles Act” with no indication of the applicable section. That sort of general reference is not what rule 6.3(2)(

d) requires. It requires reference to the applicable provision of the enactment or rule, to demonstrate that the applicant knows why it believes that is entitled to the relief, and to give the respondent an understanding of the case it has to meet. Of course, the rule says that the Court may “otherwise permit”. In a special application, where arguments have been set out in writing a couple of weeks in advance, arguments about prejudice to the effect that the respondent does not know the basis for the application fade.

These concerns are often best dealt with by way of a costs order. [emphasis in original] [ 19 ] In reviewing the Court file, I note that there is no mention anywhere of Mr. Matta’s concerns regarding Ms. Matta’s affidavits. I find that even if counsel’s representation regarding the fact that “concerns” were raised previously about the untranslated exhibits is correct, this does not constitute proper notice under the Rules , and certainly does not constitute notice of the remaining grounds for the application to strike. [ 20 ] Mr.

Matta’s application to strike ought to be dismissed by reason of non-compliance with Rule 6.3 alone. [ 21 ] Even if I were not to dismiss the application on that basis, given the lack of proper notice, I would not be able to strike the impugned portions of Ms. Matta’s affidavits as a result of Rule 1.5. Mr. Matta did not file an application within a reasonable time after he became aware of the alleged contravention as required by Rule 1.5(2). Ms. Matta’s First Affidavit was filed April 21, 2021 and her Second Affidavit was filed July 2, 2021, both well in advance of the September 24, 2021 hearing.

There was plenty of time for Mr. Matta to provide Ms. Matta with notice of his specific concerns regarding the contents of her affidavits. With the exception of the concern regarding translation, he did not do so. III. Application to Strike [ 22 ] Rule 6.12 provides that I may still consider and decide the application even if notice has not been given: If person does not get notice of application 6.12 If it appears to the Court at the time an application is heard that a person who should have been served with notice of the application was not served, the Court may (

a) dismiss the application, (

b) adjourn the hearing for notice to be served, or (

c) if the Court considers it appropriate to do so, hear and decide the application. [ 23 ] Rule 3.68 governs applications to strike. Rule 3.68(4) establishes that a Court may strike all or part of an affidavit that

contains frivolous, irrelevant or improper information. [ 24 ] It remains within the discretion of the Court to determine whether it is necessary to hear an application to strike discretely, in advance of a substantive application. [ 25 ] As noted above, this matter was originally set to proceed to an EVV hearing on September 24, 2021.

EVV hearings are typically subject to certain procedural direction with the goal of keeping such hearings organized and focussed on the issues; each party’s evidence in chief is given by way of affidavit filed and served in well in advance of the hearing, and the hearing is generally limited to one hour. [ 26 ] Argument regarding Mr. Matta’s application to strike took up more than 30 minutes of the one hour scheduled for the EVV hearing, thus making it impossible to proceed with the merits of the hearing within the time allotted.

The hearing was adjourned to December 16, 2021, pending my decision on the application to strike. I therefore may very well not be the judge who ultimately hears the application to extend the QBPO. This raises the question of whether I should exercise my discretion to hear and decide the application to strike on a preliminary basis. [ 27 ] The authorities considering the issue of the exercise of discretion to hear applications to strike in advance of the substantive hearing enumerate several factors to be considered.

Friesen, J., addressed the issue in Orr v Alook , 2019 ABQB 713 starting at para. 27 : In CLM v DGW , 2004 ABCA 112 [ CLM ], at para 11 , the Alberta Court of Appeal held it was not appropriate for the chambers judge to strike affidavit evidence at the preliminary stage of the proceedings. According to the Alberta Court of Appeal, at para 11, rulings on the admissibility of affidavit evidence are best left to the judge ruling on the substantive issues for two reasons: ... First, that judge is best positioned to know all the facts, balance the competing arguments and rule appropriately.

Second, encouraging interlocutory rulings and appeals on admissibility serves to fragment proceedings, increase costs and encourage delay without appreciably assisting the judge deciding the motion on its merits ... [ 28 ] In Gauchier v Cunningham , 2012 ABQB 513 , Gates J distinguished the CLM case and exercised his discretion on a preliminary application under Rule 3.68(4) to strike certain portions of affidavits filed in a civil litigation matter.

In so determining he observed at para 15: ...[t]he purpose of case management is to prepare a matter for trial and to streamline, to the extent possible, the various litigation processes leading to trial. Avoiding unnecessary cross-examination on superfluous opinion conclusions and legal

interpretations in affidavits is, in my view, a component of effective case management ... Gates J opined his role as the Case Management Judge was different than the role of a Chambers Judge hearing an interlocutory application. I note that as the Case Management Judge, Gates J would have been familiar with the parties, the proceedings and the facts. In Murphy v Cahill , 2012 ABQB 793 , Veit J exercised her discretion on a preliminary application under Rule 3.68(4) not to strike or redact affidavit evidence filed in the context of a civil suit claiming oppression.

With respect to the aspect of the application alleging inadmissible opinion evidence, she observed “the best way to deal with inadmissible opinion evidence in civil proceedings is not to apply to strike it out prior to the substantive hearing, but to make submissions at the hearing that it is either inadmissible or that it should be given no weight” (para 34). Essentially, Veit J felt it should be left to the judge who would be considering the substantive application to determine the admissibility and characterization of the disputed evidence.

More recently in ANC Timber Ltd v Alberta (Minister of Agriculture and Forestry) , 2019 ABQB 653 , Topolniski J exercised her discretion on a preliminary application under Rule 3.68(4) to strike affidavits, all or in part, in the context of a motion for an interim injunction. She noted litigants are entitled to seek to have offending evidence struck from affidavits pursuant to Rule 3.68(4).

She observed “the quest for expediency should not override a litigant’s procedural remedies, or fundamental evidentiary requirements” (para 23). [ 29 ] Friesen, J., went on to state at para. 32: While it is clearly open to a party to seek a preliminary ruling under Rule 3.68(4) to strike all or part of an affidavit, the application of Rule 3.68(4) is discretionary. Here, the impugned Hirsche Affidavit was filed almost two years ago. Mr. Hirsche died in February of 2018. The trial dates were set nine months ago, yet the current application was filed only recently, on August 2, 2019.

If the application was urgent it should have been filed a long time ago. [ 30 ] She went on to hold that considering all of the facts and circumstances of the case, the issues raised should be determined by the judge hearing the

summary trial, who was in the best position to rule on the issues, as compared to her sitting as a special chambers judge hearing a preliminary application. [ 31 ] It is my view that given the manner in which EVV hearings take place, particularly that it is the assigned judge who reviews the affidavits in advance of the hearing and becomes familiar with the issues raised by the parties, the best way to deal with alleged inadmissible evidence is to make submissions on the point at the hearing, leaving it to the judge hearing the matter to determine the admissibility, weight and characterization of the impugned evidence.

In that sense, Mr. Matta’s approach to address the issue of disputed affidavit evidence at the EVV hearing was correct. [ 32 ] My concern, however, is with the lack of notice given to Ms. Matta. Given the very short time permitted for QBPO hearings, it is incumbent upon counsel to ensure that the time is used wisely, and that any preliminary issues are identified and resolved as much as possible as between the parties prior to the hearing itself.

Bringing an application to strike portions of an affidavit without any notice in advance of the one-hour EVV hearing leaves the opposing party unable to respond in a meaningful way, thus often requiring an adjournment, which is what occurred in this case. Further, the lack of notice places the judge in a difficult position in attempting to deal with a preliminary application while still ensuring that the hearing takes place within the hour scheduled.

[ 33 ] Because the judge hearing the application to extend the QBPO will be in a better position to consider an application to strike portions of Ms. Matta’s affidavits in the context of the QBPO itself, having heard the parties give evidence and heard oral argument, I decline to exercise my discretion to decide the application to strike. [ 34 ] If Mr. Matta wishes to bring an application to strike portions of Ms. Matta’s affidavits, he may do so by filing an application and providing proper notice to Ms. Matta, in accordance with the Rules . IV. Conclusions [ 35 ] Mr.

Matta’s application to strike portions of Ms. Matta’s affidavits is dismissed on the basis of his failure to provide sufficient notice of his application in compliance with Rules 1.5(2) 6.3 and 12.44, with leave to reapply, on proper notice, in advance of the hearing date of December 16, 2021. [ 36 ] Costs of the application to strike are to be paid by Mr. Matta to Ms. Matta in the amount of $500. Heard on the 24 th day of September, 2021. Dated at the City of Edmonton, Alberta this 18 th day of October, 2021. L.K. Harris J.C.Q.B.A.

Appearances: Andrew Wood Rand & Company for the Plaintiff Yemi Philip Philip Law Office for the Defendant