Case information

Evidence — Admissibility — Expert evidence — Non expert evidence — Applicants filing affidavits in support of a motion to exhume remains of the father of one of the applicants — Affidavits struck either in part or in their entirety — Whether the lower courts’ decisions resulted in a manifest injustice against the applicants — Whether the lower courts committed errors in striking the applicants’ evidence while failing to take into consideration instances of the spoliation of, or failure to preserve, critical forensic toxicological evidence — Whether the lower court erred by failing to treat the then self represented applicants in a manner comporting with reasonableness and the applicable guidelines.

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In a statement of claim, the applicants allege that Mr. Layes’ father was murdered by family members through the administration of poison, and that the respondents assisted in that process or in a subsequent cover up of the real cause of death. The applicants brought a motion for an order to exhume the remains of Mr. Layes’ father and filed affidavits in support of that motion. The respondents brought a motion to strike all or portions of those affidavits. The motion judge struck paragraphs from most of the affidavits on numerous bases, including that they contained hearsay and irrelevant material. She also struck three affidavits in their entirety. She held that one of the proposed toxicology experts could not file an amended affidavit, having found his affidavit displayed bias in favour of the applicants. The Court of Appeal denied leave to appeal with respect to the non expert affidavits, as the applicants had not raised an arguable issue. It granted leave to appeal with respect to the motion judge’s striking the entirety of one expert’s affidavit and her prohibition against him filing any further affidavits, but it dismissed the appeal, holding that the motion judge made no error in striking that affidavit in its entirety or in exercising her discretion to bar the affiant from acting as an expert.