Musial v. Pike, 2022 NSSC 261

SUPREME COURT OF Nova Scotia Citation: Musial v. Pike, 2022 NSSC 261 Date: 20220920 Docket: 501063 Registry: Halifax Between: Chris Musial, Michelle Robertson Applicants v. Sandra Pike, "The Pike Group of Realtors", "Royal LePage Atlantic" and Atlantic Real Estate Services Limited Respondents Decision Judge: The Honourable Justice Peter Rosinski Heard: July 22, 2022, in Halifax, Nova Scotia Counsel: C. Gavin Giles, K.C., for the Applicants Christopher W.

Madill, for the Respondents The original text of this decision has been corrected according to the erratum dated October 5, 2022 By the Court: Introduction [ 1 ] By way of an Application in Court proceeding, realtors/real estate agents, Chris Musial and Michelle Robertson are suing Sandra Pike, “The Pike Group of Realtors”, “Royal LePage Atlantic” and Atlantic Real Estate Services Limited. [1] [ 2 ] The application in court process is governed by Civil Procedure Rule [“ CPR ”] 5.07.

The process is accurately described as “trial by affidavits”. [ 3 ] My task herein is to rule on objections by both the Applicants and Respondent(

s) respecting the admissibility of parts of each of their affidavits (and Scott Smith’s on behalf of the Applicants) filed in this application in court. [ 4 ] The Applicants and Respondent, Ms. Pike, provided a tabular

summary of their objections to the various paragraphs of the other party’s affidavits while leaving a space for my ruling in relation to each of them. My answers in

summary are attached hereto as

Schedule “A” and

Schedule “B”. Background [ 5 ] As the Applicants, Chris Musial and Michelle Robertson filed affidavits (including that of Scott Smith, President and directing mind of Rooftight Construction Limited [”Rooftight”]) in support of their position that the Respondent(s) “collectively in any number or jointly and severally” owe them for commissions due in relation to real estate sales with which they were involved on or before August 18, 2020.

[ 6 ] As Respondent, Ms.

Pike has filed affidavits in support of her position that she is not responsible to pay the claimed commissions to the Applicants – Notice of Contest (November 13, 2020); and has made her own claim that the Applicants pay damages to her for one-third of the commissions received by them for sale of Rooftight Construction Limited homes, between August 18, 2020 and August 18, 2021. [ 7 ] Chris Musial and Michelle Robertson provided their services through “Royal LePage Atlantic”, which is a real estate agency, realtor and real estate broker, which carries on business through its formal registered name, Atlantic Real Estate Services Limited.

Chris Musial and Michelle Robertson also worked in conjunction with the so-called Pike Group of Realtors. [ 8 ] Sandra Pike is a realtor/real estate agent who also provided her services through “Royal LePage Atlantic”. Ms. Pike marketed herself as the head of the “Pike Group of Realtors”, which is the tradename for a team of real estate agents within Royal LePage. [ 9 ] In her April 26, 2022 brief, Ms. Pike stated the issues for determination were as follows:

a) whether the Applicants are entitled to a share of the listing commission on the sale of Rooftight homes that had not [yet] closed when they left the Pike Group [on or about August 18, 2020] – [based on the terms of the Partner Agent Agreement (s. 3)]; and

b) whether Ms. Pike is entitled to damages representing a share of the listing commissions that the Applicants listed on the sale of Rooftight homes in the one-year period after leaving the Pike Group – [because they breached the non-solicitation clause of their Partner Agent Agreement with Ms. Pike, and they committed the tort of civil conspiracy [2] /inducing breach of contract between Rooftight and the Pike Group/Ms. Pike on or before August 18, 2020, or on the basis of unjust enrichment/quantum merit.] [3] [ 10 ] In their April 26, 2022 filed brief, the Applicants stated the issues for determination were as follows:

a) are the Applicants entitled to the commissions they generated from selling the Rooftight homes described in

Schedule “A” to the Amended Notice of Application (filed February 2, 2022);

b) is Ms. Pike entitled to any of the commissions the Applicants generated from selling Rooftight homes after their relationship with The Pike Group, such as it was, ended on August 18, 2020? The relevant legal principles [ 11 ] Justice Norton very helpfully summarized these principles in Annapolis (County) v EA Farren Limited , 2021 NSSC 304 : Law 7 I previously had occasion to canvas the law relating to this type of motion in King v. Gary Shaw Alter Ego Trust , 2020 NSSC 288 and Superport Marine Services Limited v. Balodis Incorporated , 2021 NSSC 237 .

I summarized the relevant Nova Scotia Civil Procedure Rules and jurisprudence in Superport beginning at para 5: [5] Civil Procedure Rule 39.02 addresses the contents of affidavits: 5.17 Rules of evidence on an application The rules of evidence, including the rules about hearsay, apply on the hearing of an application and to affidavits filed for the hearing except a judge may, in an ex parte application, accept hearsay presented by affidavit prepared in accordance with Rule 39 - Affidavit. 39.02 Affidavit is to provide evidence

(1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules, or legislation.

(2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness' belief in the truth of the information. . . . 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.

(3) If the parts of the affidavit to be struck cannot readily be separated from the rest, or if striking the parts leaves the rest difficult to understand, the judge may strike the whole affidavit.

(4) A judge who orders that the whole of an affidavit be struck may direct the prothonotary to remove the affidavit from the court file and maintain it, for the record, in a sealed envelope kept separate from the file.

(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. [6] In King v. Gary Shaw Alter Ego Trust , 2020 NSSC 288 , I reviewed the applicable law in a similar motion to strike, at paras 9 to 14: [9] The leading decision in this province on the appropriate contents of affidavits is Waverly (Village) v. Nova Scotia (Municipal Affairs ) , 1993 NSSC 71 . Therein, Justice Davison made the following observation and set out in

summary form the guidelines for admissible affidavit evidence (I note here that his reference to “application” was to a Chambers Application in the former Rules, now a Motion in Chambers in our present Rules): 14 Too often affidavits are submitted before the court which consist of rambling narratives. Some are opinions and inadmissible as evidence to determine the issues before the court.

In my respectful view the type of affidavits which are being attacked in this proceeding are all too common in proceedings before our court and it would appear the concerns I express are shared by judges in other provinces... 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 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 [a motion under the present Rules]. 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 [motions] 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] In Sopinka, The Law of Evidence in Canada, 5th ed. (Toronto: Lexis Nexis, 2018), the authors introduce the law of evidence asfollows (p. 12): The law of evidence controls the presentation of facts before the court and is made up of common law principles, statutory provisionsand constitutional principles.

Its purpose is to facilitate the introduction of all logically relevant facts without sacrificing any fundamentalpolicy of the law which may be of more importance than the ascertainment of the truth. [11] There is a discretion for a judge to exclude evidence that meets the test of relevancy if the judge considers that the probative value isoutweighed by its prejudicial effect. This discretion is most often considered in the context of criminal trials before juries. It has alsobeen used to limit certain evidence in civil cases, again primarily before juries. The discretion has been recognized as broad: R v.

B.(C.R.), (SCC), [1990] 1 S.C.R. 717. Hearsay [12] Hearsay is one of the most common objections made to the introduction of evidence.

It has been defined by the Supreme Court ofCanada as follows: Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it isoffered, are inadmissible, if such statements or conduct are tendered as proof of their truth or as proof of assertions implicit therein. [R. v.Bradshaw, 2017 SCC 35, at para. 1 and 20] [13] Sopinka says: The usual hearsay circumstance covered by the rule is where the witness testifies as to what someone else, who is not before the court,said. However, the modern

interpretation of hearsay also encompasses prior out-of-court statements made by the very witness who istestifying in court when such earlier statements of the witness are tendered to prove the truth of their contents. [Supra, at p. 249] [14] The defining features of the rule are that the purpose of adducing the evidence is to prove the truth of its contents and the absence ofthe contemporaneous opportunity to cross-examine the declarant. It is the inability to test the reliability of the evidence by cross-examination of the declarant that makes the admission of such evidence unfair and inadmissible.

The rule recognizes the difficulty of thetrier of fact assessing the probative value, if any, to be given to a statement made by a person who has not been seen or heard and whohas not been subject to cross-examination. [R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787] [7] These same evidentiary issues were considered in Canadian National Railway Company v. Halifax (Regional Municipality), 2012NSSC 300("CNR"). With regard to the hearsay objection, Leblanc J. stated, at paras 5-8: Hearsay [5] Rule 5.13 governs the use of hearsay evidence on applications.

Rule 5.13 provides that the “rules of evidence, including the rulesabout hearsay, apply on the hearing of an application and to affidavits filed for the hearing except a judge may, in an ex parteapplication, accept hearsay presented by affidavit prepared in accordance with Rule 39 - Affidavit.” This rule, says HRM, indicates thathearsay is not permitted on an application unless a common law hearsay exception applies. I am satisfied that this would include theprincipled approach to admitting hearsay on the basis of necessity and reliability, as described in R. v.

Khelawon, 2006 SCC 57, anddecisions preceding it. [6] The “essential defining features” of hearsay are ... “(1) the fact that the statement is adduced to prove the truth of its contents and (2)the absence of a contemporaneous opportunity to cross-examine the declarant.” (Khelawon at para. 35) It must be emphasized that it is

“only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises.” (Khelawon at para. 36)Further, Charron J. said for the court in Khelawon, (paras. 37-38) that while an out-of-court statement by a witness who testifies will behearsay if adduced for the truth of its contents: When the witness repeats or adopts an earlier out-of-court statement, in court, under oath or solemn affirmation, of course no hearsayissue arises.

The statement itself is not evidence, the testimony is the evidence and it can be tested in the usual way by observing thewitness and subjecting him or her to cross-examination. The hearsay issue does arise, however, when the witness does not repeat or adoptthe information contained in the out-of-court statement and the statement itself is tendered for the truth of its contents.... [7] Charron, J. went on to discuss the challenges of recognizing hearsay, at paras. 56-58: The first matter to determine before embarking on a hearsay admissibility inquiry, of course, is whether the proposed evidence ishearsay.

This may seem to be a rather obvious matter, but it is an important first step. Misguided objections to the admissibility of anout-of-court statement based on a misunderstanding of what constitutes hearsay are not uncommon. As discussed earlier, not all out-of-court statements will constitute hearsay. Recall the defining features of hearsay. An out-of-court statement will be hearsay when: (1) it isadduced to prove the truth of its contents and (2) there is no opportunity for a contemporaneous cross-examination of the declarant.

Putting one's mind to the defining features of hearsay at the outset serves to better focus the admissibility inquiry. As we have seen, thefirst identifying feature of hearsay calls for an inquiry into the purpose for which it is adduced. Only when the evidence is being tenderedfor its truth will it constitute hearsay.

The fact that the out-of-court statement is adduced for its truth should be considered in the contextof the issues in the case so that the court may better assess the potential impact of introducing the evidence in its hearsay form. [8] Second, by putting one’s mind, at the outset, to the second defining feature of hearsay – the absence of an opportunity forcontemporaneous cross – examination of the declarant, the admissibility inquiry is immediately focussed on the dangers of admittinghearsay evidence. Iacobucci, J. in R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144 identified the inability to test the evidence asthe “central concern” underlying the hearsay rule. Lamer, C.J. in U. (F.J.) expressed the same view but put it more directly by stating:“Hearsay is inadmissible as evidence because its reliability cannot be tested” (para. 22). [8] With respect to the opinion objections, Leblanc J. commented as follows: Opinion Evidence [11] In addition to extrinsic evidence concerns, this case raises issues of opinion evidence. Charron, J. (as she then was) summarized thelaw on opinion evidence in R. v.

Collins (2001), (ON CA), 160 C.C.C. (3d) 85, at para. 17: In the law of evidence, an opinion means an “inference from observed fact”: see R. v. Abbey (1982), (SCC), 68 C.C.C.(2d) 394 at 409. As stated in Abbey, as a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact todraw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not requirespecial knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts.

Awitness testifying that “a person was drunk” is a common example of an opinion that can be provided by a lay witness. See R. v.Graat (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.) for a review of the law on non-expert opinion. Otherwise, opinionevidence will only be received with respect to matters calling for special knowledge beyond that of the trier of fact. In those cases, anexpert in the field may be permitted to provide the judge and jury with an opinion, that is “a ready-made inference which the judge andjury, due to the technical nature of the facts, are unable to formulate” (Abbey at 409).

The law as to expert opinion evidence wasauthoritatively restated in Mohan, supra. Before expert opinion evidence can be admitted, the evidence: (

a) must be relevant to an issuein the case; (

b) it must be necessary to assist the trier of fact; (

c) it must not be subject to any other exclusionary rule; and (

d) it must begiven by a properly qualified expert. [12] Paciocco and Stuesser, in The Law of Evidence in Canada, 6th ed. (Irwin Law, 2011) the authors summarize the law governing layopinion evidence at 183: Lay witnesses may present their relevant observations in the form of opinions where

• they are in a better position than the trier of fact to form the conclusion; • the conclusion is one that persons of ordinary experience are able to make; • the witness, although not expert, has the experiential capacity to make the conclusion; and • the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated aseffectively without resort to conclusions. Materiality and Relevance 8 The Municipality also referred me to the comments of Justice Wright in Islam v.

Maritime Muslim Academy, 2019 NSSC 53, atpara 33: ...inadmissible hearsay, argumentative, speculative, containing unsupported conclusions and opinions, impermissible comment on...credibility and in some respects, irrelevancies. These are all legitimate criticisms of the affidavit, contravening as it does the principlesgoverning the form and content of affidavits as set out in Waverley... 9 As to what is relevant, in R. v.

White, 2011 SCC 13, the Supreme Court of Canada described the concept of relevance in thefollowing terms: [36] ...In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experienceto make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence”. 10 The Court had previously commented on this principle in R. v. Arp (SCC), [1998], 3 S.C.R. 339: [38] ... To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact inissue.

The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. ... 11 The parties agree that it is the substantive law governing the cause of action or offence set out in the pleadings that determinesrelevance. There is an apparent disagreement regarding the scope of what is relevant and how the evidentiary concepts of relevance andmateriality differ. 12 In their text, The Law of Evidence, (Toronto: Irwin Law Inc., 2015), authors David Paccioco and Lee Stuesser offer helpfulexplanations.

As to what is “material”, the authors say at p. 28: Regardless of the kind of proceeding, courts or tribunals resolving issues of fact are being asked to settle particular controversies. Theyare not interested in information about matters other than those that are that need to be settled. Evidence that is not directed at a matter inissue is inadmissible because it is “immaterial”. By contrast, “evidence is material if it is directed at a matter in issue in the case” “whatis in issue is determined by and a function of the allegation contained in the pleadings and the governing procedural and substantivelaw”.

As to the meaning of “relevance”, the authors explain at p. 30: While the concept of materiality describes the relationship between evidence and the matters in issue, logical “relevance” is about therelationship between evidence and the fact it is offered to prove. There is no legal test for identifying relevant evidence. Relevance is amatter of logic.

To identify logically irrelevant evidence, ask, “does the evidence assist in proving the fact that my opponent is trying toprove?” for example, evidence that the alleged robber had downloaded a map of the area where the bank that was robbed was locatedwould be relevant in linking the accused to the robbery. Evidence that he had downloaded movies about bank robbers would not.

Scandalous and Vexatious 13 The last category of objection is that certain content is scandalous or vexatious. Rule 39.05 restricts the filing of scandalous affidavits as follows: A party who files a scandalous, irrelevant, or otherwise oppressive affidavit is subject to the provisions of Rule 88 - Abuse of Process. 14 As to what defines scandalous content, courts have described scandalous content as “[o]ffensive allegations made for the purpose of prejudicing another party and inflammatory rhetoric directed at a party”. ( Stevens v.

Associated Lodges of the Village of Douglaston Trust , 2018 NBQB 82 at para. 12 , citing Chopik v. Mitsubishi Paper Mills Ltd. (2002), 2002 CarswellOnt 2336 at para. 26 (Ont. S.C.J.) . 15 The Nova Scotia Court of Appeal's decision in Wall v. Horn Abbot Ltd ., 1999 NSCA 67 , provides a further example. Justice Cromwell, writing for the Court, at para. 35, held that the “vivi d picture [the affiant] paints of strippers, drugs, and motorcycle gangs had no place in this affidavit.

This material was not only irrelevant, but scandalous.” 16 It is noteworthy that the Court has authority to strike a scandalous statement from an affidavit notwithstanding that it might otherwise be relevant : Elwin v. Nova Scotia Home for Coloured Children , 2013 NSSC 196 , at para 40 . 17 As it turns out, each passage that was objected to on this basis was previously determined by me to be irrelevant and struck on that basis. Application of Law to Affidavits Materiality and Relevance 18 What is in issue in this case, and therefore relevant, is framed by the pleadings.

The cause of action in the Notice of Application alleges that: … 20 As the authorities make clear, an item of evidence is only legally relevant if it helps establish (or disprove) one of these material facts. … 24 I have allowed some affidavit evidence as narrative. Paccioco , supra , explains narrative evidence as follows, at p. 46: It is inevitable that in narrating a story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality.

For example, the trier of fact is likely to learn what a police officer was doing when a call was received, or whether the police officer was in a marked or unmarked police vehicle. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence. Care must be taken with the narrative doctrine; prejudicial information should gain this kind of “back door” entry only where significant testimony cannot be recounted meaningfully and fairly without its disclosure.

Even then, the testimony should be edited pursuant to the judge's exclusionary discretion to the extent that it can be, to minimize any damage that may be done. When prejudicial or otherwise immaterial information does piggyback its way into the record as part of the narrative, judges must avoid relying on it for improper purposes and in jury trials, if there is any risk that jurors could misuse the evidence, judges must give limiting instructions directing

those jurors as to the limitations on the use that the evidence can be put to. I am satisfied that I can instruct myself on the proper and improper use of the narrative evidence that I have admitted.

Opinion 25 In response to the Applicant's objections to inadmissible hearsay, the Respondent asserts that these attestations are admissible as lay opinion as they constitute “compendious statements of fact”. 26 Paccioco , supra , provides the following assistive commentary, at p. 198: To understand this distinction, attempt to describe the difference between a vehicle traveling at 40 kilometres an hour and one traveling at 70 kilometres an hour without expressing what will clearly be conclusions that captured the series of indescribable and internalised observations that enable most people to provide fair estimates of speed.

Or, consider the recognition of faces. The compendious statement of fact, “That is Aunt Sally”, subsumes myriad subtle characteristics observed and digested by the witness, attributes that could not be communicated effectively without resort to conclusions. Except in those common areas where this kind of opinion evidence is routinely admitted, the admissibility of lay opinion evidence is a matter of judicial discretion. Based on the reasoning in Graat , an important consideration is whether it is necessary to have the lay witness express an opinion.

In exercising that discretion, the trial judge should therefore assess whether the trier of fact is in as good a position as the witness to form the relevant conclusion. If so, the lay opinion should not be admitted unless the lay opinion evidence can, without prejudicing the case, assist in the orderly presentation of information. In R. v. Walizadah , for example, it was useful to permit a police officer to give jurors a fair and balanced guided tour through a video re-enactment even though they were capable of seeing what was there to be seen.

It is clear from Graat that in determining whether lay opinion evidence is needed, the trial judge should consider whether, given the nature of the observation or the deficiencies of language, it is necessary for the witness to resort to “compendious” statements in order to communicate effectively what has been observed. Where the witness can communicate the information adequately by describing with particularity what has been observed, the witness should generally not be permitted to express an opinion. 27 I have admitted some passages of lay opinion based on the concept of compendious statements of fact.

In all other cases, the passage objected to on the basis of lay opinion had been previously struck by me on the basis of relevance. I am satisfied that I can properly instruct myself on the use of the admitted lay opinion evidence. Legal Submission 28 Submissions do not constitute evidence : Canadian National Railway v. Teamsters Canada Rail Conference, 2017 NSSC 10 , at para 49 . In Canadian Imperial Bank of Commerce v.

CNH Capital Ltd., 2013 NSCA 35 , the Court of Appeal commented on the meaning of the prohibition against statements in the nature of a plea or submission, as expressed in Waverley and the language of Rule 39.04(2) (a). In particular, at para. 82, the Court noted that the prohibition generally refers to a “conclusory statement that embodies or assumes a point of law.” Conclusion [ 12 ] Based on the relevant legal principles, in the context of the circumstances argued to be relevant herein, and as the issues are framed, I have come to my conclusions in the attached Schedules “A” and “B”.

Rosinski, J.

SChedule a

Schedule of Applicants' Objections to Pike Affidavit – with rulings **If I conclude that i agree substantially with the party’s objection; i will reference only “inadmissible” (or Admissible as the case may be) although i may elaborate** Paragraph Applicants’ Objection Court’s Ruling On Paragraph 28(

a) Ms. Pike’s beliefs are not relevant and are therefore impermissible. inadmissible 35 Ms. Pike’s beliefs are not relevant and are therefore impermissible. inadmissible [ See also paras. 40 and 59 of Applicant] 59 Averments as to “arrogant behavior”, “argumentative attitude”, and “lack of team-focused approach” are inferences which can only be drawn from proven facts.

Without any references to proven facts, the averments are statements of opinion only and are therefore impermissible. inadmissible [ February 17, 2022 document self created – self serving] 60 The averment is the alleged “request from other members of the team to let” Mr. Musial go is hearsay; permissible only if the source of the deposed to information is also disclosed. As the source of the deposed to information is not disclosed, the averment is impermissible. inadmissible [ But can be used only to cross- examine Mr. Smith] 62

(1) Ms. Pike’s averments as to her observations of other people, from which she has then interpreted or extrapolated their emotions, is opinion and is therefore impermissible.

(2) Ms. Pike’s averment “very aloof with me” is an inference which can only be drawn from proven facts. Without any references to proven facts, the averment is a statement of opinion only and are therefore impermissible. inadmissible 65 The averment as to knowledge about what another person or party is doing is hearsay; permissible only if the source of the deposed to information is also disclosed. As the source of the deposed to information is not disclosed, the averment is impermissible. admissible [ Pike was introduced to Smith in 2018 and in 2019 Rooftight started to build.

See also paras. 6 and 7 - Smith (January 11, 2022) and Pike para. 66] 73 The averment as to what “a single experienced realtor could easily have handled” is an opinion and therefore impermissible. provisionally admissible [ If Pike is sufficiently experienced in the circumstances to give such opinion “compendious statement of fact” – e.g. see also paras. 5-6, Luis v. Marchiori , 2018 BCCA 317 ]

76 The averment as to open houses as a lead generator is an opinion and therefore impermissible. provisionally admissible [ Based on her specialized industry knowledge/practice] 94(

a) at Footnote 1 The averment as to what listing agents and new agents typically do is an opinion and therefore impermissible. inadmissible 97 The averment purports to interpret an agreement, what it means and how it applies. It is an opinion, and possibly a legal opinion, and therefore impermissible. inadmissible 99 The averment constitutes a statement as to Ms. Pike’s beliefs which are impermissible.

They are also irrelevant to the subject matter of the proceedings and contextually offensive. inadmissible [ Intimate relationship between Smith and Robertson may be relevant to their credibility – but not without proper evidentiary foundation] 108 The averment as to “the Team’s” mental health is a conclusory opinion offered without underlying facts and is therefore impermissible. It may also be a medical, psychological, or psychiatric opinion which Ms. Pike has not been proven as qualified to give. inadmissible 109

(1) The averment as to “wreaking havoc” is a conclusory opinion offered without underlying facts and is therefore impermissible.

(2) The averment as to what might or might not have been too much for Mr. Smith to handle is a conclusory opinion offered without underlying facts and is therefore impermissible.

(3) The averment as to what Ms. Robertson might or might not have been privy to is an opinion offered without underlying facts and is therefore impermissible. inadmissible 115 Averments as to Ms. Pike’s beliefs are irrelevant and are therefore impermissible. inadmissible 118

(1) Averments as to Ms. Robertson’s relationship to/with Mr. Smith are irrelevant, amount to hearsay, and in one respect, amounts to hearsay and opinions drawn from facts not disclosed.

(2) As irrelevant as the averments are, they are also scandalous in that they could only have been deposed for the sole purpose of embarrassing Ms. Robertson and perhaps, Mr. Smith too. The averments are impermissible. Items (

a) and (

b) are admissible ; whereas items (c), (d), and (

e) are inadmissible Not scandalous in these circumstances 121 The averments is conjecture, and an opinion on a hypothetical matter, and is therefore impermissible. inadmissible

131 The averments as to the subject “firings” are hearsay only and are thus impermissible. Both paras. 130-131 are inadmissible - (I also rejected Musial/Robertson affidavit at paras. 118-119) 139 The averment as to what surprised Ms. Pike is irrelevant and thus impermissible. inadmissible 140 The averment as to what constitutes a non-completion clause is both opinion, and a legal opinion which subsumes mixed fact and law. It is thus impermissible. inadmissible 141 The averment that Mr. Musial “… had clearly struck some deal with Mr. Smith and Rooftight” is Ms.

Pike’s opinion, or inference drawn, about a subject matter upon which she has not deposed any forms of material fact. What a person did in any given circumstance is a matter of fact, to be averred on the basis of direct knowledge or properly supported hearsay as to information and belief. What a person might have done in any given circumstance is conjecture and therefore opinion. Both approaches are impermissible. inadmissible 151 The averment is of a definition of common law agency. That is an opinion which subsumes mixed fact and law.

It is thus impermissible. provisionally admissible [If Pike has requisite expertise/experience to reliably speak to this issue] 152 The averment is of another definition of common law agency. That is an opinion which subsumes mixed fact and law. It is thus impermissible. As per ruling in para. 151 - provisionally admissible 153 The averment is to the

interpretation of a legal relationship. That is an opinion which subsumes mixed fact and law. It is thus impermissible. inadmissible 157 The averment is an opinion in the form of a legal conclusion. It is thus impermissible. inadmissible 158 The averment is to what some other person might be legally entitled to do against the back drop of not stated or only briefly stated agreements is both an opinion and an attempt at legal

interpretation. Both are impermissible. inadmissible 159 The averment is as to what some other person (or people) might or might not fall with respect to an alleged agreement and what that person (or people) might be able to do as a matter of fact and law. That is an opinion which subsumes mixed fact and law. It is thus impermissible. inadmissible 160 The averment to an “understanding” of what is or might be a breach of any “NSREC trading regulations” is both an opinion and irrelevant. It is thus impermissible. inadmissible 189 The averment as to any form of performance being “top notch” is an opinion for which no materials facts have been disclosed. It is thus impermissible. inadmissible

SCHEDULE B Form 5.16 2020 Hfx. No. 501063 SUPREME COURT OF NOVA SCOTIA BETWEEN: CHRIS MUSIAL and MICHELLE ROBERTSON APPLICANTS - and - SANDRA PIKE, “THE PIKE GROUP OF REALTORS”, ROYAL LePAGE ATLANTIC”, and ATLANTIC REAL ESTATE SERVICES LIMITED RESPONDENTS Notice of Objection to Admissibility (Application in Court) To: Chris Musial and Michelle Robertson c/o Gavin Giles, Q.C. McInnes Cooper Objection The Respondent Sandra Pike objects to averments in: 1. The Affidavit of Chris Musial and Michelle Robertson, sworn on January 11, 2022; 2. The Affidavit of Scott Smith, sworn January 11, 2022; 3.

The Reply Affidavit of Michelle Robertson, sworn March 9, 2022; and 4. The Reply Affidavit of Chris Musial, sworn March 9, 2022. The Applicants request that the subjects of the objection be expunged. Particulars of Averment The subjects objected to are in the following parts of the affidavits identified below and are to the following effects: 1.

Affidavit of Chris Musial and Michelle Robertson, sworn January 11, 2022 **If I conclude that I agree substantially with a party’s objection, I will reference only “Admissible” or “Inadmissible” although I may elaborate** Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling Paragraph 7 “Royal LePage was responsible for remitting to us commissions we earned from real estate transactions” The affiants cannot give evidence as to what Royal LePage is and is not “responsible” for. This is a legal opinion.

Furthermore, the affiants do not provide a basis for saying that Royal LePage is “responsible” for the activities referred to. This statement is impermissible. Admissible – as a statement of fact based on past experience

Paragraphs 10 and 11 “The Trade Record Sheet instructed Royal LePage as to the amount of commission it was to remit to the Independent Sales Representative for the transaction”. “If a commission was to be split between two or more Independent Sales Representatives, the Trade Record Sheet would also indicate how and to whom the commission was to be split”. This is the affiants’

interpretation of the legal effect of a document. It is an opinion, not a fact. It is impermissible. Admissible - as a statement of fact based on past experience Paragraph 14 “In addition to paying us commissions we earned from transactions, Royal LePage was also responsible for holding our real estate licenses, receiving and holding in trust deposits from clients, reviewing documents for legal and regulatory compliance, executing transactions, and creating tradeprints”. The affiants cannot give evidence as to what Royal LePage is and is not “responsible” for. This is a legal opinion.

Furthermore, the affiants do not provide a basis for saying that Royal LePage is “responsible” for the activities referred to. This statement is impermissible. Admissible - as a statement of fact based on past experience Paragraph 40 “I felt pressured to sign the Partner Agent Agreement on the spot or risk retaliation from Ms. Pike, who had already been pressing me to join the Pike Group…” The statement regarding Ms. Robertson’s feelings is irrelevant.

Inadmissible Paragraph 44 “…our Independent Sales Representative Agreements still provided us with, among other entitlements, the following entitlements to commissions” This statement purports to interpret an agreement and speak to the legal effect of a document. It is impermissible opinion evidence. Admissible - as a statement of fact based on past experience Paragraph 45 “…it was still Royal LePage that was responsible for collecting and remitting back to us commissions that we earned from real estate transactions”. The affiants cannot give evidence as to what Royal LePage is and is not “responsible” for.

This is an impermissible legal opinion. Furthermore, the affiants do not provide a basis for saying that Royal LePage is “responsible” for the activities referred to. This statement is impermissible. Admissible - as a statement of fact based on past experience **If I conclude that I agree substantially with a party’s objection, I will reference only “Admissible” or “Inadmissible” although I may elaborate** Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling

Paragraphs 46-48 and 50-51 “Frequently, Ms. Pike threatened to fire us and other members of the Pie Group”. “On one occasion, Ms. Pike asked members of the Pike Group for advice on how to go about firing a fellow member of our team”. “On another occasion, Ms. Pike called me, Michelle Robertson, unprompted and asked me how I would feel if she removed me from listing associated with Rooftight Construction…” “If any Pike Group member voiced dissent, Ms. Pike would publicly berate that person”. “In many instances, Ms. Pike would lash out at us for doing our everyday tasks with threats of firing us from her team”.

These paragraphs are scandalous and replete with impermissible hearsay. The statements regarding Ms. Pike “publicly berating” someone and “lashing out” are particularly vague and lacking in foundation; the affiants are attempting to have the Court rely on their characterizations of out-of-court statements allegedly made by Ms. Pike without even making reference to what was said. These paragraphs are also irrelevant to the legal issues before the Court, and are plainly designed to do little more than impugn Ms. Pike and her reputation in the eyes of the trier of fact.

Para. 46 Inadmissible – vague, irrelevant and hearsay Para. 47 Inadmissible – irrelevant, unsourced, too vague Paras. 48-49 Admissible – statements of fact – “narrative” value Para. 50 – Inadmissible – too vague, not relevant Para. 51 – similarly to para.46 – inadmissible Paragraph 59 “As the meeting progressed, I came to regard Mr. Young’s role as being one designed to intimidate me; and I was in fact intimidated”. This is a statement of Mr. Musial’s opinion or belief. It is irrelevant and inadmissible. It is also irrelevant.

Inadmissible **If I conclude that I agree substantially with a party’s objection, I will reference only “Admissible” or “Inadmissible” although I may elaborate** Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling

Paragraph 60 “…this meeting set the tone for many future threats by Ms. Pike any time I disagreed with her or her assignment of menial tasks, such as collecting keys from lockboxes for her listings, a task for which she was responsible”. This paragraph is irrelevant to the issues before the Court. The statement regarding “many future threats” is vague and impermissible and lacking any foundation. Mr. Musial is purporting to rely on out-of-court statements allegedly made by Ms. Pike without referring to the statements that were allegedly made. The averment regarding Ms.

Pike being “responsible” for certain tasks is a matter of belief or opinion. It is unsupported and inadmissible. Inadmissible Paragraph 63 “It was our understanding that the Rooftight account contained more listings than any one realtor could handle on their own”. The source or basis for this “understanding” is not provided. There is no foundation for this statement. The averment as to what any one realtor could handle on their own is an opinion and therefore impermissible. Provisionally admissible – “understanding” may have been based on what Pike told them and their own observations.

See paras/ 61-64 Paragraph 92 “Royal Lepage remained, at all times, responsible for remitting commissions owing to us from the sale of Rooftight homes”. The affiants cannot give evidence as to what Royal LePage is and is not “responsible” for. This is a legal opinion. Furthermore, the affiants do not provide a basis for saying that Royal LePage is “responsible” for the activities referred to. This statement is impermissible. Admissible – see para. 45 Paragraph 93 “Our membership in the Pike Group and our membership on the Rooftight Sales Team did not change our relationship with Royal LePage”.

This is not a fact, but a statement of belief and/or plea and/or impermissible lay opinion regarding a legal issue. Inadmissible Paragraph 94 “…the working relationship between Ms. Pike and Mr. Smith began to deteriorate significantly in or about late September of 2019…” No foundation is provided for this statement. It is not a fact. It is impermissible. Admissible – what the affiant observed directly/indirectly Paragraph 95 “Despite our better judgment in light of our growing concerns with Ms.

Pike’s lack of professionalism or regard for others…” This statement contains a scandalous allegation without any evidentiary foundation whatsoever. It is not a fact. Admissible - as narrative Paragraph 97 “… as Ms. Pike was no longer in verbal communication with Mr. Smith” There is no foundation provided for this statement. Admissible – what the affiant observed directly/indirectly Paragraph 100 “In March, 2020, Ms. Pike was considering severing ties with Rooftight”. This is a statement of opinion and/or belief. The Applicants cannot speak to what Ms. Pike was or was not considering.

Conceded to be inadmissible by Applicants **If I conclude that I agree substantially with a party’s objection, I will reference only “Admissible” or “Inadmissible” although I may elaborate** Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling

Paragraph 102 “Ms. Pike’s only involvement in the Rooftight Account, if any, was her creation of social media advertisements” There is no foundation provided for this statement. Without that foundation, the Applicants cannot speak to what Ms. Pike did or did not do, or what she was or was not involved in. Inadmissible Paragraph 106 “Ms. Pike’s lack of attentiveness to the Rooftight Account led us to be concerned that Rooftight would decide against relisting with the Pike Group…” The statement regarding Ms. Pike’s “lack of attentiveness” is scandalous, lacking foundation, and a matter of opinion. It is not a fact.

Furthermore, the affiants’ “concerns” are irrelevant. Inadmissible Paragraph 116 “To our disappointment, and despite our best efforts, Ms. Pike had not done anything to convince Rooftight to relist with her” There is no foundation for this statement. The Applicants cannot speak to what Ms. Pike did or did not do in the absence of a foundation for this statement. It is opinion or speculation masquerading as fact. Inadmissible – conceded by Applicants Paragraph 118 “… as Ms.

Pike had a habit of firing Pike Group members who disagree with her, or members would resign” This statement is both irrelevant and lacking foundation. It is designed to do little more than disparage Ms. Pike. Inadmissible Paragraph 119 “… there were 11 firings or resignations within a group of five core members”. This statement is both irrelevant and lacking in foundation. Inadmissible Paragraph 121 “This practice made us feel degraded and undervalued”. The affiants’ feelings are irrelevant. Inadmissible Paragraph 122 “…Ms. Pike used the monthly fee she levied from us in an unpredictable manner”.

The word “unpredictable” here denotes a statement of opinion or belief. It is impermissible. There is also no foundation for this statement. It is not a statement of fact. Inadmissible Paragraph 125 “…Ms. Pike would dispute buyer commission splits based on her own subjective view as to her relationship with a buyer…” This statement is vague and ambiguous, and lacking in foundation. Inadmissible Paragraph 128 “…in order to escape the stress and instability associated with working under Ms. Pike’s control” This is not a statement of fact. It is a statement of opinion. It is impermissible.

Inadmissible (see also paras. 118- 119,121-2 and 125) Paragraph 129 “…We had no remaining obligations to Ms. Pike regarding the Rooftight account”. Whether or not the affiants had any “remaining obligations to Ms. Pike regarding the Rooftight Account” is a matter of opinion or plea. It is not a fact. It is a question for the Court to determine. This is impermissible. Inadmissible Paragraph 153 “We continued to act in good faith towards Ms. Pike”. This is an opinion or plea. It is not a fact, and it is impermissible.

Inadmissible Paragraph 161 “…listing commissions from several Rooftight homes… were either owing to us by Royal LePage… or would become owing to us in the near future…” This is a legal opinion and/or plea/summation. This is one of the legal issues to be determined by the Court. The affiants cannot speak to their entitlement to commissions. Inadmissible (opinion/submission) **If I conclude that I agree substantially with a party’s objection, I will reference only “Admissible” or “Inadmissible” although I may elaborate** Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling 2.

Affidavit of Scott Smith, sworn January 11, 2022 Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling

Paragraph 16 “exceeded the workload of one real estate agent…” The averment as to what any one real estate agent could handle on their own is an opinion, not a fact, and is therefore impermissible. Provisionally Admissible – see para. 63 (Musial Feb 25, 2022) and para. 72 (Pike) – it is narrative – explaining why he permitted other Royal LePage realtors to sell Rooftight homes Paragraph 24 “During 2019, Mr.

Musial performed most of the open houses on weekends over a forty- four (44) week period, including a twenty-six (26) week consecutive stretch of weekend open houses” There is no evidentiary foundation for this statement. Mr. Smith has not identified how he is aware of this statement. Provisionally admissible – if based on his personal knowledge Paragraph 43 “Ms. Pike preferred to take a divisive approach to leadership…” There is no foundation for this statement. It is an opinion, not a fact. It is also irrelevant.

Inadmissible Paragraphs 56, 66, 67 and 71 “Jason Brunt… and Richard Butts… instructed me to fire Ms. Pike immediately”. “I was informed by Mr. Brunt, and I thus believed, that my recommendation against relisting with Ms. Pike was accepted” “Mr. Brunt instructed me to seek out new listing agents for the Fall and Winter 2020 group of Rooftight listings”. “Mr. Brunt informed me, and I thus believed, that itw as best if Rooftight asked Mr. Musial and Ms. Robertson to submit a proposal to Rooftight to take on the upcoming group of listings”. This is hearsay.

Admissible – to explain why he “fired” Pike Admissible - He confirms that he recommended against re-listing with Pike Admissible Narrative – why he did what he did [see paras. 55 and 66] Admissible Narrative – why he did what he did Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling 3. Reply Affidavit of Michelle Robertson, sworn March 9, 2022 Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling Paragraph 34 “…the pending transactions were firm…” This is a statement of legal opinion or belief, not a statement of fact.

Admissible – the transactions would be proceeding based on her direct/indirect observations 4. Reply Affidavit of Chris Musial, sworn March 9, 2022 Paragraph and Exhibit Containing Words to this Effect Grounds of Objection Ruling Paragraph 27 “…the pending transactions were firm…” This is a statement of legal opinion or belief, not a statement of fact. Admissible as above

Signature Signed June 17, 2022. Christopher W. Madill Stewart McKelvey 600-1741 Lower Water Street PO Box 997 Halifax, NS B3J 2X2 Telephone: 902.444.1711 Facsimile: 902.420.1417 Counsel for the Respondent, Sandra Pike SUPREME COURT OF Nova Scotia Citation: Musial v. Pike, 2022 NSSC 261 Date: 20220920 Docket: 501063 Registry: Halifax Between: Chris Musial, Michelle Robertson Applicants v.

Sandra Pike, "The Pike Group of Realtors", "Royal LePage Atlantic" and Atlantic Real Estate Services Limited Respondents ERRATUM October 5, 2022 Judge: The Honourable Justice Peter Rosinski Heard: July 22, 2022, in Halifax, Nova Scotia Counsel: C. Gavin Giles, K.C., for the Applicants Christopher W. Madill, for the Respondents Erratum Details:

Schedule “A” and

Schedule “B” are now attached