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Inadmissible Evidence Leads to Dismissal of Application

In Rowan Williams Davies & Irwin Inc. v ProWise Engineering Inc. et al., Justice O’Reilly dismissed the application after finding there was “insufficient evidence to support the application.”

The application concerned allegations of copyright infringement centred on a “pedestrian wind assessment,” an engineering report prepared for a condominium project.  Both corporate parties are engineering firms (RWDI and ProWise), and both provided reports of this nature to their clients.

In the past, the two firms had explored the possibility of working together, but this had not come to pass. Following the unsuccessful negotiations, a former RWDI employee contacted RWDI and informed them that she had seen a ProWise wind assessment that closely resembled RWDI’s work on a different project (which was publicly available). This information led to RWDI commencing the litigation against ProWise, alleging copyright infringement through plagiarism.

The Court did not, however, determine the merits of RWDI’s claim. The application was dismissed because it was not supported by admissible evidence.

ProWise challenged the admissibility of those portions of RWDI’s witness’ original affidavit, asserting that the evidence of the former employee was hearsay and therefore inadmissible. Justice O’Reilly accepted this position holding that the main thrust of the original affidavit was to provide evidence of the similarity of the RWDI and ProWise reports. That is, the former employee’s statements were introduced for the truth of their contents, not simply to demonstrate that they had been made.

Much of RWDI’s documentary evidence was introduced as “schedules” to its notice of application and memorandum of fact and law, rather than as exhibits to an affidavit. The Court noted that

[10] …This is insufficient to make it admissible.  Evidence must be attached to a witness’s affidavit…

Although the deficiencies in RWDI’s evidence were brought to its attention months earlier, it took no steps to rectify the problem until just before the hearing. The Court did not permit RWDI to file the new supplementary affidavit, finding that RWDI had not met or tried to meet the test for filing supplementary evidence set out in Forest Ethics Advocacy Association (whether the evidence would have been provided earlier, whether it will assist the Court and whether the opposite party would suffer prejudice and the Court must be provided an explanation for the late presentation of the evidence).

In this instance, while the evidence might have been relevant and might have assisted the Court, it was available earlier and RWDI failed to explain why it had not been filed earlier. Permitting it to be filed would also have prejudiced ProWise as there were some aspects that were new and to which ProWise had not had the opportunity to respond.

In the end, the offending affidavit evidence was struck and motion for leave to file the supplementary affidavit was denied.  Without evidence, the application could not be supported.  It was accordingly dismissed.

The decision can be found here.