Part 1 on this subject is in the July 2025 edition of LIANSwers. That article discusses R. v. Cumberland, 2025 NSSC 173. Briefly, in Cumberland, the defendant, who had counsel, filed an affidavit 332 pages long with 1,200 pages of document exhibits. The Court in striking much of it stated that affidavits:
- contain material that must be admissible,
- should not contain asides by way of colour commentary, opinion or speculation,
- are for a specific purpose,
- should not be rambling narratives containing a mixture of admissible and inadmissible evidence, and
- should not contain random assertions.
As to the role of counsel, the Court stated “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.”
When it comes to the role of counsel in preparing affidavits, the recent Court of Appeal decision in Rice v. Rice, 2026 NSCA 22 goes further.
In Rice, the Appellant’s motion to introduce fresh evidence was denied, the Court determining that the proposed fresh evidence was inadmissible, irrelevant and did not meet the requirements of Palmer.
The Court’s comments on Civil Procedure Rule 39 are important for counsel. Starting at paragraph 51 of the decision, the Court stated:
[51] Rule 39 is essential reading. It provides in part:
39.02 Affidavit is to provide evidence
(1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules, or legislation.
(2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information.
[52] Rule 39 also directs judges, faced with a non-compliant affidavit, as follows:
39.04 Striking part or all of affidavit
(1) A judge may strike an affidavit containing information that is not admissible evidence, or evidence that is not appropriate to the affidavit.
(2) A judge must strike a part of an affidavit containing either of the following:
(a) information that is not admissible, such as an irrelevant statement or a submission or plea;
(b) information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by evidence of the source and belief in the truth of the information.
(3) If the parts of the affidavit to be struck cannot readily be separated from the rest, or if striking the parts leaves the rest difficult to understand, the judge may strike the whole affidavit.
(4) A judge who orders that the whole of an affidavit be struck may direct the prothonotary to remove the affidavit from the court file and maintain it, for the record, in a sealed envelope kept separate from the file.
(5) A judge who strikes parts, or the whole, of an affidavit must consider ordering the party who filed the affidavit to indemnify another party for the expense of the motion to strike and any adjournment caused by it.
[53] Given the direction contained in the Rules, it is difficult to understand why counsel are still drafting and presenting affidavits with significant amounts of inadmissible material. Further, since 1993, Waverley (Village) v. Nova Scotia (Municipal Affairs) has been repeatedly cited by courts in an attempt to impress upon litigants and their counsel the importance of mindful drafting and respect for evidentiary integrity. Justice Davison’s observations made over 30 years ago still resonate:
Great care should be exercised in drafting affidavits. Both pleadings and affidavits should contain facts but there are marked differences between the two types of documents. Affidavits, unlike pleadings, form the evidence which go before the court and are subject to the rules of evidence to permit the court to find facts from that evidence. They should be drafted with the same respect for accuracy and the rules of evidence as is exercised in the giving of viva voce evidence.
Too often affidavits are submitted before the court which consist of rambling narratives. Some are opinions and inadmissible as evidence to determine the issues before the court. . .
[54] Waverley remains good law and Justice Davison’s directions are as relevant today as they were in 1993, notably:
- Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material;
- An affidavit should not take on the flavour of a plea or a summation;
- Where hearsay is permitted, affidavits may refer to facts based on information and belief, but the source of the information should be referred to in the affidavit;
- The information as to the source of the information must be sufficient to conclude the information comes from a sound source and preferably the original source; and
- The affidavit must state that the affiant believes the information received from the source.
[55] To the above I would add:
- If counsel want to rely on an affidavit containing hearsay, they should be able to clearly articulate the Rule, rule of evidence or legislation that permits its admission into evidence;
- Exhibits to an affidavit must be authenticated by the affiant within the body of the affidavit and must also comply with the Rules and rules of evidence. Exhibits are not a means of introducing otherwise inadmissible hearsay or opinion evidence; and
- Parties who file affidavits that are non-compliant with the Rules and rules of evidence will face the potential of shouldering meaningful cost consequences for doing so.
The Court in Rice also discussed counsel’s responsibilities when drafting affidavits. In Paragraphs 42 to 49 of the decision, the Court stated (our emphasis added):
[42] However, presenting an Exhibit Book at a hearing does not mean the documents in it have been entered into evidence. It is not uncommon for self-represented litigants to fail to understand the distinction between what is filed and what has been properly admitted as evidence. Lawyers should appreciate the difference, yet this Court sees increasing instances where counsel include material in Exhibit Books which never ends up being made part of the evidentiary record. Hearing judges should not be criticized on appeal for failing to consider material that was not entered into evidence. In fact, if it was demonstrated a hearing judge did so, it could give rise to this Court’s intervention.
[43] Civil Procedure Rule 51.11 provides detailed instruction on how to prove a document at a hearing, including where there is consent to its admission (Rule 51.11(2)), where only authenticity is admitted by the opposing party (Rule 51.11(3)), and where there is no such admission (Rule 51.11(4)). Here, the documents the appellant says the hearing judge should have considered were not entered into evidence in accordance with the above requirements.
[44] I turn now to the affidavits as the source of “evidence” the hearing judge purportedly failed to consider. As noted earlier, counsel for both parties had, prior to the hearing, acknowledged the affidavits contained substantial hearsay. As opposed to undertaking the process of making a motion to strike the objectionable contents, the parties agreed the hearing judge would only consider in her deliberations the contents that she viewed as being properly admissible. This was a practical means, especially given the number and length of the affidavits in question, for the hearing judge to manage what had been placed before her. My comments to follow should not be viewed as a criticism of her approach.
[45] However, due to the process suggested by the parties and employed by the hearing judge, there is no means for this Court on appeal to determine what contents the hearing judge actually considered or rejected as inadmissible. Judges are deemed to know the law and properly apply it, absent a demonstrable error. The appellant has shown no such error, and as such her appeal on this basis must fail.
[46] Before leaving this point, I make two important observations. Firstly, as a general statement, the hearing judge should never have been asked to undertake the process of sifting through multiple and lengthy affidavits rife with hearsay, speculation, opinion and irrelevant information to identify admissible evidence. Counsel ought to have ensured the affidavits filed at the hearing complied with the rules of evidence, not to expect the hearing judge to do their work. Secondly, the hearing judge’s experience in this matter is an increasingly common one.
[47] A review of reported court decisions demonstrates that motions being brought to have offending passages of affidavits struck are becoming regular fare, even when parties are represented by counsel. Although there are occasions where there is legitimate debate about whether a particular passage or two in an affidavit offend the rules of evidence, there are increasing instances of filed affidavits being effectively gutted after being reviewed by a judge and the offending materials removed. Judicial time and client money are being unnecessarily expended on the avoidable process of teasing out obvious objectionable material.
[48] The consequences of non-compliant affidavits can be particularly troubling in family matters. Hearsay and irrelevant allegations launched by one party against another often start a “tit for tat” cascade of dueling affidavits that do nothing to address the merits or resolve the tensions and conflict so often present in this type of litigation. Further, eating into valuable court time to address objections to the contents of affidavits wastes resources meant to address the real issues in dispute, and may delay making important decisions impacting on the lives of the parties and their children. Presenting a jumbled mess of non-compliant affidavits for the judge to sort out is a failure of counsel to fulfill their professional duties to the court and their client.
[49] The responsibility lies with counsel to take care in the drafting of affidavits so the contents comply with the evidentiary rules and to only file them once they do. They must guard against including inappropriate material in affidavits, even if clients want them to.
We understand that a client’s preference – and pressure – to include inadmissible evidence in an affidavit can be difficult to manage. However, as the Court here notes, it is your responsibility to manage this and make sure affidavits comply with the rules. The Court in Rice has articulated that non-compliant affidavits can result in adverse cost consequences. If your client will not accept your advice and insists on preparing and filing non-compliant affidavits, or more generally will not accept or follow your advice, you have to consider whether you can, or should, continue to act. At a minimum you should advise that there could be adverse cost consequences.
These are not new considerations for lawyers. We write about issues like this all the time. Because we have your best interests at heart. Many of you heed our comments, some do not. We would strongly suggest that all should heed the words of the Court of Appeal and to the extent that what we write is based upon what the Courts are saying, our words merit some deference.