Executive Summary: Key Legal and Evidentiary Issues

• Scope of a judge’s discretion under Civil Procedure Rule 39.04 to strike inadmissible, irrelevant, argumentative, or scandalous affidavit material.
• Proper limits of affidavit evidence, including prohibition on legal argument, opinion, speculation, innuendo, and submissions disguised as evidence.
• Requirements for information-and-belief evidence in affidavits, including identification of the source and a stated belief in the information’s truth.
• Application of Civil Procedure Rule 5.17 (no supplementary affidavits without leave) to late or additional affidavits filed in an application.
• Distinction between sworn evidence and unsworn submissions, and the role of a hearing judge in deciding whether to receive unsworn material as argument.
• Costs consequences of a motion to strike affidavits where a self-represented party files defective materials and fails to attend the hearing, including fixing costs in the cause at a set amount.

Background and procedural setting

This case arises from a dispute between Amber Tobin (Applicant) and Anthony Smith (Respondent) in the Supreme Court of Nova Scotia. The immediate decision concerns a motion by the Respondent to strike portions of, or entire, affidavits filed by Ms. Tobin in an application brought under the Intimate Images and Cyber Protection Act, 2017, c. 7, s. 1. The parties are already involved in separate ongoing family proceedings in the Supreme Court (Family Division). Those family proceedings gave rise to the present application when Ms. Tobin reacted to statements made in an affidavit filed by Mr. Smith in that other matter. In response, she launched this application in the General Division, alleging issues under the cyber-protection and intimate images legislation. Within this application, Ms. Tobin filed several affidavits: an affidavit dated October 2, 2025; a document titled “Response to Notice of Contest” dated October 15, 2025 (described as an affidavit within its text but unsworn); a Supplementary Affidavit dated October 16, 2025; and another Supplementary Affidavit dated October 27, 2025. The Respondent then brought a motion under Civil Procedure Rule 39.04, seeking to strike specific paragraphs from the October 2 affidavit and to strike in their entirety the October 15, October 16, and October 27 documents. Although Ms. Tobin filed written materials opposing the motion, she did not appear at the motion hearing.

Legal framework governing affidavits

The decision focuses on the admissibility and propriety of affidavit evidence. Justice Gabriel begins with Civil Procedure Rule 39.04, which authorizes a judge to strike affidavits that contain information that is not admissible evidence or is not appropriate for an affidavit. The rule requires a judge to strike parts of an affidavit that contain inadmissible material such as irrelevant statements, submissions, or pleas, or material that may be admissible but where the basis for admission—such as the source and belief in the truth of hearsay—is not set out. Where the inadmissible parts cannot easily be separated, or striking them would leave the balance incomprehensible, the judge may strike the entire affidavit. The decision also notes the rule’s direction that a judge who strikes an affidavit must consider ordering the party who filed it to indemnify the other party for the expense of the motion and any related adjournments. The Court then turns to the leading authorities on affidavit practice. In Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs), the Court set out key principles: affidavits must be confined to facts, not argument or speculation; facts should generally be based on the affiant’s personal knowledge; where information and belief is used in an application, the source must be identified; that source must be sufficient for the Court to conclude it is sound (preferably the original source); and the affidavit must state that the affiant believes the information received. These principles underscore that affidavits are not vehicles for pleadings or summations; they are a means of putting factual evidence before the Court. The judge also refers to Wall v. 679927 Ontario Limited, a Court of Appeal decision emphasizing that even when information-and-belief evidence is permitted, it does not entitle a deponent to add commentary on credibility, innuendo, or conjecture. In Wall, a fundamentally defective affidavit—riddled with irrelevant, scandalous material—was held to be so flawed that the Court need not salvage fragments of admissible content; it should simply be struck. This approach informs the treatment of Ms. Tobin’s supplementary affidavits, which are comprised primarily of legal argument and commentary rather than facts.

Rules on late and supplementary affidavits

Because two of Ms. Tobin’s impugned documents are styled as supplementary affidavits, the Court also applies Civil Procedure Rule 5.17, which governs late or additional affidavits in applications. That rule provides that parties to an application may file affidavits only within the prescribed deadlines unless the hearing judge determines that circumstances justify allowing a late affidavit. When deciding whether to allow such an affidavit, the judge must consider several factors, including the reasons for late filing, whether the evidence was or could have been known with due diligence by the deadline, the relevance of the evidence to a decisive or potentially decisive issue, the prejudice to the offering party if the affidavit is not admitted, the prejudice to other parties if it is allowed (including adjournment-related prejudice), and the public interest in efficient use of court resources. The rule also contemplates indemnity orders for expenses caused by late affidavits and adjournments. In this case, Ms. Tobin did not seek or obtain leave for either of her supplementary affidavits under CPR 5.17. This procedural failure, combined with the substantive defect that they consist almost entirely of legal submissions rather than factual evidence, is central to the Court’s decision to strike them completely.

Application of the principles to the impugned affidavits

Justice Gabriel summarizes the outcome in a chart that addresses each affidavit and the challenged paragraphs. First, the October 2, 2025 affidavit is considered. Paragraph 5 survives; the Court finds it is not improper, as it merely explains why Ms. Tobin says she shared certain images, and thus it is factual rather than argumentative. In contrast, paragraphs 7, 8, and 9 are struck because they amount to argument, speculation, and/or irrelevant material. Paragraph 11 is struck as argument, and paragraph 14 is struck as opinion or argument, both of which are inappropriate in an affidavit. The chart then addresses the October 15, 2025 “Response to Notice of Contest,” which, on its second page, refers to itself as an affidavit. The Court notes that this document is unsworn and consists of submissions on the merits. Rather than treat it as evidence, Justice Gabriel declines to strike it as an affidavit, essentially because it is not truly an affidavit at all. The document is left intact, with the clarification that it will fall to the hearing judge to decide whether and how to receive it as submissions at the eventual hearing of the application. Turning to the October 16, 2025 “Supplementary Affidavit Public Good Argument and Cyber Protection Act,” the Court strikes the entire document. No leave was obtained to file it, contrary to CPR 5.17, and in any event it consists entirely of legal argument, which is not proper subject matter for affidavit evidence. The same reasoning is applied to the October 27, 2025 Supplementary Affidavit: it too is struck in its entirety because leave was never sought under CPR 5.17 and the document again comprises legal argument rather than facts. Drawing on the Waverley and Wall principles, the Court signals that it is not obliged to “take apart” fundamentally defective affidavits to rescue isolated fragments of admissible content when the documents are essentially argumentative submissions masquerading as evidence.

Costs and the outcome of the motion

Although the Applicant did not attend the hearing, she had filed written materials in response and later wrote to the Court apologizing for her absence, attributing it to confusion over dates and the burden of managing multiple ongoing proceedings. The Court accepts her apology and notes that, fortunately, both parties’ positions were clear on the record despite her non-appearance. On the merits, the Respondent’s motion is allowed in part: specific paragraphs of the October 2 affidavit are struck; both supplementary affidavits dated October 16 and October 27, 2025 are struck in full; and the unsworn October 15 “Response to Notice of Contest” is left for the eventual hearing judge to treat as submissions if appropriate. Justice Gabriel directs counsel for the Respondent to prepare a draft order implementing these determinations and to send it to both the Court and Ms. Tobin, who is given one week to raise any objections confined strictly to whether the order accurately reflects the decision. On costs, the Court fixes the costs of the motion at $750, with costs to be “in the cause,” meaning they are tied to the overall outcome of the proceeding rather than immediately payable as a stand-alone sanction. In practical terms, the successful party on this motion is the Respondent, Anthony Smith, and the monetary amount ordered in connection with this decision is $750 in costs, subject to the final disposition of the broader case.