Affidavit Evidence

Her Majesty the Queen in Right of Ontario v. Canadian Broadcasting Corporation, 2019 ONSC 1079 (CanLII)

[29] In support of this Application, Ms. Bair swore an affidavit dated October 24, 2018, to which she attached a number of exhibits. Post Media submits that paragraphs 3, 18, 27, 28, 34, 35, 37, 39, 40, 41, 42, 43, 45, and 48 contain opinion and argument rather than sworn evidence of facts.

The Law

[30] In this matter, r. 4.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) applies, which provides:

(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

[31] Rule 39.01(5) states:

(5) An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.

[32] In Glasjam Investments Ltd. v. Freedman, 2014 ONSC 3878, at para. 35, Master Macleod (as he then was) held that affidavits cannot contain opinion and argument:

Finally the affidavit suffers from containing opinion rather than fact. An affidavit is supposed to be sworn evidence of facts within the knowledge of the deponent. Opinion and argument are not facts but conclusions and unless the witness is tendered as an expert then the witnesses’ opinion is neither admissible nor probative of anything. Having a law clerk swear that “I am further advised by [Counsel for Moving Party] and verily believe it to be true, that it is likely that the Notice… has been used as a scheme” is simply improper. Even had [Counsel for Moving Party] sworn the affidavit, the court would not be interested in his opinion. Counsel may properly ask the court to reach a conclusion based on facts properly before the court but the fact that counsel believes the conduct of the other party to be improper is neither here nor there.

[33] In Coote v. Zellers (2007), 2007 CanLII 48985 (ON SCDC), 231 O.A.C. 129 (Div. Ct.), leave to appeal to Ont. C.A. refused, June 30, 2008 (M36083), at para. 17, Justice Himel for the Divisional Court held:

The applicant’s affidavit material sets out his opinions as to whether the evidence supports the referral of his complaint to the Tribunal and, for the most part, consists of argument… The argument of the applicant should not be contained in affidavits filed in support of the application for judicial review. Argument is properly contained in a factum. Accordingly, the affidavit of the applicant which includes attachments must be struck from the record.