|
Evidence - Affidavits. Formula First Collision v. Aviva Canada [public interest policy themes]
In Formula First Collision v. Aviva Canada (Ont CA, 2026) the Ontario Court of Appeal considered an appellate motion, here to strike an affidavit filed and relied up "in its factum in support of a motion for leave to appeal a decision of the Divisional Court".
The court considered an attempt by a business litigant to raise interesting 'public interest' issues, here in an appellate fresh evidence (leave to appeal) context:IV. Analysis
[13] The governing principles that are relevant to this motion were helpfully reviewed by Zarnett J.A. in Optiva Inc. v. Tbaytel, 2021 CanLII 78438 (Ont. C.A.). I summarize some of the key principles as set out in that decision:. An affidavit cannot express an opinion that the proposed appeal raises issues of public importance, since that is for the panel to decide.
. An affidavit cannot “seek by way of experts’ opinion, to buttress an attack on the decisions from which leave to appeal is sought”: Optiva Inc., at para. 10, quoting Ballard Estate v. Ballard Estate, [1991] S.C.C.A. No. 239.
. An affidavit will only be proper if it sets out facts that may help the panel appreciate the public importance of the issues raised.
. In general, whether a legal issue is of public importance is not something on which an affidavit would be helpful.
. However, an affidavit may in some cases be helpful if it is not apparent from the rest of the materials why, for example, the decision sought to be appealed is alleged to establish a precedent that is unworkable in practice, or otherwise is likely to have a problematic impact or jurisprudential importance not apparent on its face. [14] It is unnecessary for me to detail each paragraph that Aviva challenges on this motion. As noted above, the affidavit primarily offers the opinion that, if left undisturbed, the Divisional Court’s decision will significantly affect the future of independent autobody shops in the province. In essence, Mr. Gobatto asserts, either implicitly or explicitly, that leave should be granted because the manner in which Aviva determines payment for repair work performed by independent autobody shops is an issue of broader public importance beyond the interests of the parties in this case.
[15] I accept Formula First’s submission that the impact of a court’s decision beyond the parties and on the wider public is relevant to the issue of public importance. However, as Weiler J.A. noted in Iness, at para. 11, relevance is not the only question to consider when granting leave to file affidavits. As Optiva Inc. makes clear, the affidavit must confine itself to appropriate factual information as to the effects of a decision that may be of assistance: at para. 11.
[16] Respectfully, an examination of the Gobatto affidavit reveals that it strays well beyond providing factual information for the assistance of the panel deciding leave. Instead, it is replete with argument and opinion. For example, if Formula First wished to rely on the impact that the Divisional Court decision had on independent autobody shops and the wider general public, it ought to have introduced relevant statistical evidence (assuming such evidence existed). While Formula First claims that the Gobatto affidavit goes to the substantive issue of whether this appeal has public importance, the assertions in this affidavit are anecdotal and based merely on the observations of Mr. Gobatto, the owner of Formula First.
[17] Moreover, the affidavit raises allegations of what Aviva has done since the decision of the Divisional Court in eight different matters. These allegations are disputed. In any event, they are not facts that that may help the panel appreciate the alleged wide impact that the Divisional Court's decision apparently has had on independent autobody shops and owners of cars.
[18] In my view, the only non-objectionable portions of the affidavit are at paragraphs 2, 3, 7, 8 and 9. These paragraphs provide information on matters that do not seem to be controversial and are objectively verifiable. But these paragraphs cannot stand on their own. They are provided to give context to the more controversial conclusion that Mr. Gobatto makes at the end of his affidavit:21. The cumulative effect of the lower court decisions is not limited to my business or other independent repair facilities. The Divisional Court’s interpretation affects millions of insured Ontarians, the safety of repaired vehicles on public roads, the competitive structure of the automotive repair market, and the integrity of FSRA’s consumer protection framework. These are all matters of clear and substantial public importance. [Emphasis added.] [19] Fundamentally, the affidavit offers an opinion on the importance of granting leave, an issue that lies squarely within the panel’s discretion. It further asserts that, if left intact, the Divisional Court’s decision will affect a substantial segment of the population by impacting safety, competition within the autobody industry, and the integrity of consumer protection legislation. It makes these assertions without proper facts, relying on anecdotal assertions rather than supporting data, statistics, or corroborating evidence. Although some portions of the affidavit are non‑controversial, the appropriate remedy is to strike the affidavit in its entirety, as those isolated paragraphs cannot meaningfully assist the panel on their own. . Auto Focus Canada Inc. v. Singh et al. [statements in affidavits]
In Auto Focus Canada Inc. v. Singh et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal against the dismissal of "the defendants’ motion to set aside default judgment", here against default judgment in several loan debt Small Claims lawsuits.
Here the court comments on credibility and statements contained in an affidavit:[43] Courts have rejected affidavit evidence that defies common sense in order to make findings on the criminal standard of proof: Business Development Bank of Canada v. Cavalon Inc., 2016 ONSC 4084, at para. 52, aff’d 2017 ONCA 663, 416 D.L.R. (4th) 269, leave to appeal refused, [2017] S.C.C.A. No. 504. It follows, therefore, that a judge may determine affidavit evidence that “defies logic” does not to rise to the level of a meritorious defence. . Corion v Plummer
In Corion v Plummer (Div Court, 2023) the Divisional Court dismissed (what must have been treated as) a fresh evidence issue, here based on an affidavit sought to be adduced by the respondent on appeal:[29] There are two issues on the cross-appeal. The first is the admissibility of the Respondent’s affidavit of August 21, 2022, which is a summary of case law and argument on the question of s. 5(1) of the Act. This affidavit is not admissible on the basis that it is argument and not evidence. . Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited
In Heiltsuk Horizon Maritime Services Ltd. v. Atlantic Towing Limited (Fed CA, 2023) the Federal Court of Appeal considered a judicial review of a CITT ruling, and here comments critically on a party's affidavit drafting:[17] Third, the Legros affidavit, in its tone and language, is argumentative and not simply descriptive. It reads as if it were the Attorney General of Canada’s memorandum of fact and law. The affidavit, for example, ventures beyond an objective description of what happened in the evaluation process and becomes an exercise of advocacy, conveying a position on the merits of the legal issue (see e.g. Legros affidavit at paras. 28, 36-39), contrary to the instruction of this Court in Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 116, 280 A.C.W.S. (3d) 229 [Tsleil-Waututh] with respect to the role and purpose of affidavit evidence (Tsleil-Waututh at para. 37).
[18] The second affidavit filed by the respondent ATL presents similar deficiencies. The affidavit of Gilles Gagnon, Vice President and General Manager of ATL, offers the opinion that the substitute masters satisfied MR 20 and earned full points under RR 24. There are two concerns here: first, this is improper opinion evidence (Shoan v. Canada (Attorney General), 2020 FCA 174, 82 Admin. L. R. (6th) 1 at para. 4), and second, as an officer of ATL, Mr. Gagnon’s opinion is irrelevant. It was only PWGSC’s conclusion on equivalency that was in issue before the Tribunal. I add that other paragraphs of the Gagnon affidavit are argumentative, not reflecting the clinical expression of fact as should an affidavit (Coldwater First Nation v. Canada (Attorney General), 2019 FCA 292, 312 A.C.W.S. (3d) 457 at para. 20; Tsleil-Waututh at paras. 37 and 42). . Canada (Attorney General) v. Bertrand
In Canada (Attorney General) v. Bertrand (Fed CA, 2021) the Federal Court of Appeal comments snarkily on the absense of use of affidavits by both parties in a judicial review application:[17] On this motion, both sides filed some material from the Internet (e.g., a Facebook post of First Nation election results, COVID statistics from a website, and a CBC news article) without an affidavit. This practice seems to be increasing. We remain a court of law that acts only on admissible evidence, not whatever counsel can scrounge on the Internet. . Chatha v. Johal
In Chatha v. Johal (Ont CA, 2018) the Court of Appeal dismissed a claim against a lawyer where it was alleged that he acted negligently in commissioning an affidavit:[18] Third, are allegations that the respondent acted negligently because she failed to verify that the contents of the Affidavit were true and accurate. However, the jurisprudence establishes that a lawyer does not owe a duty to third parties to verify the accuracy of the information contained in an affidavit he or she drafts or commissions: Piccolotto v. Kanhai, 2015 ONSC 4807 (CanLII), at paras. 14-16; Gerling Global General Insurance Co. v. Siskind, Cromarty, Ivey & Dowler (2002), 2002 CanLII 49480 (ON SC), 59 O.R. (3d) 555 (S.C.), at paras. 15-16.
[19] There are good policy reasons for this, including that imposing such a duty of care could potentially place a lawyer in a conflict of interest with his or her client. In addition, as a practical matter, it would make even the routine swearing of affidavits a time consuming and prohibitively expensive proposition. In my view, this jurisprudence is persuasive and the duties of a lawyer or notary when commissioning an affidavit should not be expanded as urged upon us by the appellant.
|
