The
Associate
Chief
Justice:—This
is
an
application
under
Rule
419(1
)(d)
for
an
order
striking
out
the
sentence:
On
or
about
the
21st
day
of
July,
1976,
the
defendant
was
contacted
by
an
official
of
Excise
Tax
Collections
in
Toronto
who
threatened
to
send
a
bailiff
to
the
defendant’s
premises
or
to
take
proceedings
to
attach
accounts
receivable
if
the
amount
demanded
as
aforesaid
was
not
immediately
paid.
in
paragraph
25
of
the
defence.
The
action
is
for
sales
and
excise
taxes
and
penalties.
In
my
opinion,
the
impugned
sentence
is
irrelevant.
On
the
face
of
it,
it
is
neither
a
defence
nor
part
of
a
defence
on
the
question
whether
the
defendant
is
liable
for
the
taxes
or
penalties
claimed.
It
is
open
to
objection
both
under
Rule
419(1)(a)
and
419(1
)(d).
The
plaintiff
should
not
be
obliged
to
plead
to
it.
It
will,
therefore,
be
struck
out.
On
the
other
hand,
I
agree
with
the
submission
of
counsel
for
the
defendant
that
the
affidavit
filed
by
the
plaintiff
in
support
of
the
application
is
purely
argumentative.
It
is,
therefore,
useless.
Moreover,
in
my
view,
it
is
not
admissible
under
Rule
332(1).
It
says
that
the
deponent,
who
does
not
state
his
profession
or
calling,*
is
informed
by
a
named
person
and
verily
believes
the
argumentative
matter
which
is
then
set
out.
It
says
nothing
to
describe
the
person
named
or
to
identify
him
as
being
someone
who
has
knowledge
of
what
is
to
be
related.
It
says
nothing
as
to
why,
if
the
named
person
had
knowledge,
he
did
not
make
the
affidavit
himself.
Rule
332(1)
provides:
332.
(1)
Affidavits
shall
be
confined
to
such
facts
as
the
witness
is
able
of
his
own
knowledge
to
prove,
except
on
interlocutory
motions
on
which
statements
as
to
his
belief
with
the
grounds
thereof
may
be
admitted.
It
seems
to
have
become
a
common
practice
in
preparing
material
for
use
in
interlocutory
applications
to
ignore
the
first
clause
of
this
rule
and
to
use
the
second
clause
as
a
device
to
avoid
the
swearing
of
an
affidavit
by
a
person
who
knows
the
facts
in
favour
of
putting
what
he
knows
before
the
court
in
the
form
of
hearsay
sworn
by
someone
who
knows
nothing
of
them.
This
is
not
the
object
of
the
rule.
The
court
is
entitled
to
the
sworn
statement
of
the
person
who
has
personal
knowledge
of
the
facts
when
he
is
available.
The
second
part
of
the
rule
is
merely
permissive
and
is
for
use
only
when
the
best
evidence,
that
is
to
say
the
oath
of
the
person
who
knows,
is
for
some
acceptable
or
obvious
reason
not
readily
obtainable.
The
order
will
go
without
costs.
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