A lawyer must ensure that the contents of an affidavit filed in support of a proceeding are relevant to that proceeding and provide the evidence and information required by the courts as outlined by legislation, regulation, and common law.
A lawyer should avoid language which embellishes or dramatizes an event unless such language is relevant in the circumstances and does not contain inadmissible evidence, unnecessary commentary and/or opinion.1
A lawyer must balance the reasonable needs, desires, expectations, and instructions of the client against the requirements outlined in the rules of court, legislation, regulations and common law when drafting an affidavit.2
1. Village Commissioners of Waverley et al. v Nova Scotia (Minister of Municipal Affairs) et al. 1993 CanLII 3403 (NS S.C.), 123 N.S.R. (2d) 46 (S.C.); Rule 39 (Affidavits) of the Nova Scotia Annotated Civil Procedure Rules; NS Family Court Rule 13.02 – Contents of Affidavits
2. Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012: section 5.1 “The Lawyer as Advocate” and section 7.2 “Responsibility to Lawyers and Others”; Rule 39 (Affidavits) of the Nova Scotia Annotated Civil Procedure Rules; and NS Family Court Rule 13.02 – Contents of Affidavits
Annapolis County (Municipality) v Heritage Wooden Shingles, 2016 NSCA 58 (CanLII). The decision to strike portions of an affidavit is a discretionary one and the standard of review on appeal is whether the judge applied the wrong principles of law or produced a ‘patent injustice’ ((Hall v. Horn Abbot Ltd., 1999 CanLII 7240 (NS CA),  N.S. J. No. 124 (C.A.)). It is an error of law to make a finding of fact where there is no evidence. Farrar JA described the paragraph of the affidavit as a ‘bold assertion’ as opposed to a belief or matter of fact re levant to the proceedings and concluded that it ought to have been struck.
D. v. Nova Scotia (Community Services), 2015 NSSC 74 (CanLII). A grandmother and foster parent were seeking standing as intervenors in an adoption application. DCS objected to significant portions of the filed affidavits but, “In the interest of time” asked only that they be ignored rather than struck. Justice Warner agreed and stipulated that the only evidence he relied on was what he referred to in his decision.
Sweetland v Glaxosmithkline Inc., 2014 NSSC 216 (CanLII). The plaintiffs prepared affidavits in support of certification in a class action. The defendants filed a motion to strike portions of the affidavit. The affidavit in question was prepared by a doctor who attached a report prepared by the Committee on Finance for the U.S. Senate. On this procedural motion hearsay is admissible but the source of the hearsay must be identified and the proponent’s belief in the hearsay established. The attached report was inadmissible because the source could not be identified. The report was prepared by a number of people and relied on documents not in evidence and anonymous sources.
Trinity Western University v. Nova Scotia Barristers’ Society, 2014 NSSC 395 (CanLII). A motion was brought by TWU to strike certain portions of the NSBS affidavits. The affidavits were from a historian and an educational psychologist. Both had special expertise with respect to gender discrimination and sexual minorities. The issues with the affidavits was summarised by Justice Campbell as follows:
“These affidavits, as evidence, occupy a grey area. Affidavits are intended to be statements of facts. They do not contain opinions about evidence or speculation about what evidence could be. But expert reports are intended to convey an opinion based on assumed facts using specialized knowledge, training or experience. These are both affidavits and expert reports. Strictly applying the rules that pertain to affidavits would be impractical.” (Emphasis added)
Justice Campbell stated that typically an expert report would begin with a statement of assumed facts and proceed from there but “Charter litigation has changed that.” Social science evidence is now critical to Charter decisions and the evidence drawn from these sources has different expectations attached to it. Justice Campbell applies the test from R. v. Abbey, 2009 ONCA 624 to determine whether the evidence contained in the affidavits is admissible. This involves two steps. The first applies the usual preconditions for experts (qualified expert, subject matter subject to expertise, relevance, no exclusionary rule); the second requires the judge to engage in a cost-benefit analysis.
Justice Campbell determined that the affidavits contained valuable context and must, by their nature, rely on facts not proven and present conclusions that aren’t subject to the usual rules of evidence.
Moore v. Moore, 2013 NSSC 175 – portions of affidavit struck because inadmissible personal opinion, inadmissible hearsay, and other affidavit struck almost in entirety as non-factual “oath helping”.
Burden v. Burden, 2012 NSSC 214 – portions of one affidavit struck because irrelevant and/or, inflammatory and other affidavit struck in its entirety because of inadmissible opinion evidence
H.M.Y. v. T.G.Y,. 2006 NSSC 185 – admissibility of discovery transcript attached to affidavit at interim hearing
Stening-Riding v. Riding, 2006 NSSC 155 – court allows application to strike entire affidavit because “replete with offending, inadmissible material”
M.Q.C. v. P.L.T., 2004 NSFC 22 – affidavits with inappropriate content considered on application for leave (given low threshold); distinction between admissible content at application stage vs at trial
Moore v Darlington, 2011 NSCA 101(CanLII): This was a motion be a self-represented party to set the matter down for an appeal. Case dismissed. At Paragraph 37, the Court of Appeal commented that the affidavit in the case did not contain affirmation of relevant facts, based on personal knowledge or reveal secondary sources of information and belief.
MacKay v Boucher, 2001 NSCA 171 (CanLII), 199 N.S.R. (2d) 248 (N.S.C.A.) – award of 75% solicitor-client fees against deponent of a false affidavit.
C.K. v C.S. (1996) 157 N.S.R. (2d) 387 – the time to deal with objections to affidavit contents is at a pre-trial conference.
Tkach v. Tkach (1984) 147 N.S.R. (2d) 378 (T.D.); C.K. v C.S. (1996) 157 N.S.R. (2d) 387 – appropriate content in an affidavit
Veinot v Dohaney, 2000 CanLII 4513 (N.S.S.C.) – affidavit by lawyer.
White v. Stevens-White, 2013 NSSC 368 – 2013-11-07, Forgeron, J. (even though neither party made an motion to strike), “Given the significant time constraints under which the court was operating, and the voluminous amounts of inadmissible material, it was not productive for the court to individually identify and strike each offending portion, rather the court globally rejected all inadmissible material contained in the affidavits. Neither the parties… were served by the glaring infringement of affidavit evidence rules”
Armoyan v. Armoyan, 2013 NSCA 99 — 2013-09-10- The words “unfairness” “chaos” and “hardship” allowed to remain in an Affidavit and all challenges to the wife’s affidavit were unsuccessful.
Canadian Bar Association – Nova Scotia / “Roll the Dice: Evidentiary Issues at Trial – Dealing out tips on Affidavits, Business Records, Hearsay and Other High Stakes Trial Issues” (May 6, 2011) from CBA-NS Family Law 1/2 Day Conference
Goodfellow, Walter R.E / An introduction to chambers practice: notes (April 2009), in Chambers practice. [KB 190 N935CP 2009]
Harney, Gregory N. and Madani, David / Affidavit Tips: Baker’s Dozen (February 2011) for Continuing Legal Education Society of British Columbia
On January 1, 2012, the Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, replaced the Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia.
The new Code references are:
section 5.1: “The Lawyer as Advocate”
rule 5.2-1: “Submission of Evidence”
section 5.6: “The Lawyer and the Administration of Justice”
section 7.2: “Responsibility to Lawyers and Others”
Eaton, K. / Practicing Ethics: Advocates’ Affidavits (1978) 5:2 NSLN 1.
Thornhill, R. / The Ten Evidence “Rules” That Every Family Law Lawyer Needs to Know (2013)
Approved by Council on March 25, 2011