Affidavits are used at some point in most legal proceedings. But they are not a free for all for the deponent to express a multitude of grievances. The material in them must be relevant and admissible.
This was recently discussed in R. v. Cumberland, 2025 NSSC 173, a criminal matter.
In Cumberland, the defendant filed an affidavit that was 332 pages long containing 1,174 paragraphs and included 1,200 pages of documents in five volumes, some of which were the deponent’s handwritten notes.
In striking out 2/3 of the 1,174 paragraphs, the Court said this about relevancy:
[11] The material contained in an affidavit must be admissible. An affidavit is not a bunch of information, personal notes and other materials pulled together in one document and filed with the view to leaving it to the court and the other side of the dispute to sort it all out and separate the important information from the rest. An affidavit is not an exercise in creative reality based narrative. It does not contain asides by way of colour commentary, opinion or speculation to maintain the reader’s interest. It is not the legal argument as expressed by the affiant. An affidavit is a legal document filed for a specific purpose and ideally organized in a way that relates the evidence to the issues in dispute.
[13] …“great care” should be taken in the drafting of affidavits. They should not be rambling narratives containing mixture of admissible and inadmissible evidence to be sorted out later. The affidavit must be drafted with its purpose in mind. That is to provide evidence in proof of the matters at issue. The affidavit is filed in support of the pleading. It is not the long form narrative from which the claims set out in the pleadings can be extracted in due course.
[14] Evidence, to be admissible, must be relevant and material, and its probative value must outweigh its prejudicial effect. Relevant evidence is evidence that tends to make a proposition more or less likely to be true. And that proposition must relate to something that is important to the case being decided. The evidence must assist the trier of fact. A list of random assertions that are on a person’s mind or are even deeply and personally important to them, are not evidence unless they meet that standard of relevance and materiality. Evidence must be about the dispute.
[15] There are no degrees of relevancy in Canadian law. Relevancy of evidence must be distinguished from the weight to be given that evidence. R. v. Morris, [1983] 2 S.C.R. 190, [1983] S.C.J. No 72 (S.C.C.). Evidence that is relevant and material may nevertheless not be admitted after consideration of the degree or extent to which that evidence will prove the fact in issue for which the evidence is offered. That requires an assessment of the inferential link between the evidence and that fact in issue….If evidence advances the case in only a de minimis way, its admission works as a distraction from the matter in issue. The evidence may be both material and relevant, but its relevance is so marginal that its admission is not appropriate.
[16] The Crown has argued that “evidence with merely a topical or thematic connection to the issue in dispute is not enough”. I agree with that statement. Information sought to be admitted as evidence must be considered in its legal context. It must potentially contribute to overcoming the legal burden the applicant is trying to address.
In our files, we see many affidavits drafted by claimants, some represented by counsel and others self-reps, that run afoul of what is proper.
We would suggest that despite your client wanting to provide an affidavit that is significantly offside the Rules and law, it is for you to edit it and only provide the Court and opposing counsel with affidavits that are relevant, focused and in compliance with the Rules. Of course counsel will often take liberties with pleadings and affidavits. But what this case says is that there are limits to those liberties . As to the role of counsel to do this, the Court said:
[8] Given the immense scope of the material and the breadth of [the] claims, there is a requirement for some focus. It is the focus that perhaps should have been brought to bear by counsel responsible for the drafting of it, before the document was filed.
The Court also commented on one paragraph of the affidavit in particular where the deponent set out what his lawyer told him. The Court stated:
[95] …Paragraph 785 is of more concern. Mr. Cumberland says that his lawyer…told him that DOJ Corrections had a practice of seizing legal documentation from people in custody and in particular during any interfacility transfers, and “as he and I observed in my case directly that this modus operandi put me and my defence and fairness of proceedings in my criminal matters at continued real risk of or actual prejudice”. The effect of this paragraph is to have…counsel in the case, give opinion and argument through the hearsay statement offered by his client in an affidavit that [counsel] filed on his behalf. That statement cannot be admissible and must be struck.