We are seeing pleadings and affidavits that push the limits of what the civil procedure rules permit them to contain. The result, of course, can be a challenge to that pleading or affidavit.

When it comes to the statement of claim, Rule 4.02(4)(b) states that it is to contain “a concise statement of the material facts relied on by the plaintiff but not argument or evidence by which the material facts are to be proved”.

Contrast this to an affidavit, the primary source of evidence for motions and applications. Rule 39.02 (1) states that “a party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules or legislation”.

Expanding on this, case law has stated that affidavits should be confined to facts, not speculation, and these facts should be based primarily on the personal knowledge of the affiant or, if information or belief, the source of that information or belief.

Moreover, affidavits should not include anything that is, pursuant to Rule 39.05, “…scandalous, irrelevant or otherwise oppressive…”, lest the affidavit be considered an abuse of process.

Recently on the subject of affidavits, their drafting and challenges to them, Justice Jamieson in MacDonald v. Hue, 2024 NSSC 24, said this:

“[19]         Waverley (Village Commissioners) v. Nova Scotia (Minister of Municipal Affairs), 1993 NSSC 71, remains the leading authority on proper affidavit evidence. It has been applied consistently by this court in motions to strike portions of affidavits and has been affirmed by our Court of Appeal. Justice Davison set out various principles regarding affidavit evidence at pp. 11-12: 

It would [be] helpful to segregate principles which are apparent from consideration of the foregoing authorities and I would enumerate these principles as follows:

  1. 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.
  2. The facts should be, for the most part, based on the personal knowledge of the affiant with the exception being an affidavit used in an application. Affidavits should stipulate at the outset that the affiant has personal knowledge of the matters deposed to except where stated to be based on information and belief.
  3. Affidavits used in applications may refer to facts based on information and belief but the source of the information should be referred to in the affidavit. It is insufficient to say simply that “I am advised.”
  4. The information as to the source must be sufficient to permit the court to conclude that the information comes from a sound source and preferably the original source.
  5. The affidavit must state that the affiant believes the information received from the source.

[20]         As an aside, I agree with the comments of Justice Keith in Colbourne Chrysler Dodge Ram Limited v. MacDonald, 2023 NSSC 309, that receipt of an affidavit from an opposing party is not an invitation to identify microscopically every potential evidentiary issue regardless of significance:

4 The Jacobs Affidavit and Gillis Affidavit clearly contain inadmissible evidence. However, the Defendants’ response was also problematic. Receiving an affidavit from an opposing party is neither an open-ended invitation to identify every possible evidentiary issue regardless of significance; nor is it a call to arms, requiring an instinctive attack on every aspect of the opposing party’s affidavits. Litigants must maintain perspective and bring a reasonable degree of judgment to bear, having regard to the promise in Civil Procedure Rule 1.01 for “the just, speedy and inexpensive determination of every proceeding.”

[21]         I would add that just as Justice Davidson in Waverley, supra warned that great care should be exercised in drafting affidavits, so too must counsel carefully exercise their judgment on behalf of their clients, when objecting to the admissibility of affidavit evidence. A failure to take care in either circumstance could result in a cost award and, depending on the circumstances, potentially a significant cost award.”

In short, pleadings set out facts; affidavits set out evidence. The place to summarize the facts, set out the law and your arguments is in a brief if one is being submitted.