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.

X (Re), 2015 CanLII 110681 (CA IRB)

[15] The Appellant did not submit new evidence in this appeal. She did submit a sworn affidavit, which attempts to add information and explain aspects of her testimony during the RPD hearing, which the RAD finds is not admissible as new evidence in this appeal. The RAD further notes that it improperly contains an argument which would be more appropriate in the memorandum of law, as an affidavit is supposed to be a sworn statement as to facts.

Glasjam v. Freedman, 2014 ONSC 3878 (CanLII)

[32] The affidavit tendered in support of Ms. Prizant’s motion is illustrative of three problems which are unfortunately all too common. The first of these is misuse of “information and belief.” Of course affidavits in Ontario may be based on information and belief. Rule 39.01 (4) says so. This rule permits efficiency in drafting of affidavits by making what might otherwise be hearsay admissible. It is also a useful provision for relief such as injunctions or freezing of assets when the very issue before the court is whether there is good reason to believe a state of affairs that cannot be proven.

[33] Rule 39.01 (4) is not however a mechanism for magically transforming speculation into hard evidence. Information and belief may be admissible. It will not necessarily have probative value nor will it preclude a court from drawing a negative inference from the failure to put forward the best available direct evidence on a contentious issue.[2] An uninformed or unqualified witness swearing that they believe a particular assertion made by someone else is evidence of little or no weight at all.

[34] The second problem is the practice of having a law clerk swear that they are informed on contentious matters by counsel who is arguing the motion. Counsel of course cannot appear before the court on his or her own affidavit. Rule 4.02 of The Rules of Professional Conduct reinforces this principle. It is no better to have a law clerk swear she is advised about contentious facts by the lawyer arguing the motion. In fact it is worse because the lawyer therefore seeks to insulate himself from cross examination but it remains his or her evidence.[3]

[35] 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 Mr. Radnoff 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 Mr. Radnoff sworn the affidavit, the court would not be interested in his opinion.[4] 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. Argument should be reserved for the factum and generally has no place in an affidavit.

[36] I agree that the offending paragraphs or sentences should be struck from the Atkinson affidavits. That would include much of paragraph 5 & 6 of the new affidavit and the arguments contained in paragraph 7 of the original affidavit. It was unnecessary to create this controversy by inserting those paragraphs since the real purpose of the affidavits was simply to put correspondence, events and the chronology before the court.

[37] It is relevant and admissible that Mr. Radnoff had not been told about the tolling agreement and it is relevant that he has now asked for disclosure of that agreement and been refused. A chronology of events and relevant correspondence sent or received are precisely the sort of non-contentious facts that could properly be put in evidence by a law clerk who has reviewed the file. In the final analysis those are the only facts that are necessary to determine the motion. It is for the court to determine if the facts give rise to a finding of impropriety.

[38] Accordingly striking the improper paragraphs has no real impact on the motion. The basis for Mr. Radnoff’s submissions and his request that the court conclude there was an abuse of process is to be found in the chronology of events, the correspondence between counsel and the transcripts of evidence. All of that evidence was before the court so Mr. Radnoff was not hampered in advancing his evidence by inability to rely on the improper paragraphs. Indeed, he did not refer to those paragraphs at all. In the words of Rule 25.11 (b) the offending paragraphs are clearly scandalous, frivolous or vexatious (or all three), do not advance the moving party’s case in any way and should be struck out.

[39] The cross motion is granted by striking the paragraphs referred to above. It is not necessary to strike the affidavits in their entirety.