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Evidence - Affidavits

. 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.


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Last modified: 02-06-23
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