Does the "best evidence” rule need to be adhered to in the record affidavit and cross-examination transcripts?
Ontario, Canada
The following excerpt is from The Ontario Flue-Cured Tobacco Growers’ Marketing Board v. Rothmans, Benson & Hedges, Inc., 2014 ONSC 3469 (CanLII):
The courts have generally found that, given these elements of the summary judgment test, the “best evidence” rule must be adhered to by including in the record affidavit evidence, and, potentially, cross-examination transcripts. In fact, this court found in Wynn v. Belair Direct, 2003 CarswellOnt3433, at para 66, “summary judgment could not be granted on the evidence of the law clerk employed by the plaintiff’s counsel and be based on evidence of attached documents given to the plaintiff by the defendant.” That kind of nominal affiant is really no affiant at all.
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