Affidavit

This is not a general article on Affidavits but rather it is specific to Affidavits filed pursuant to Rule 9-7 Summary Trial – to be clear.

Let’s begin with an important quotation noted in Sermeno v. Trejo, 2000 BCSC 846:

A summary trial must be conducted with the same regard to the rules of pleading and evidence as a full trial. Significant care must be exercised in preparing affidavit materials for a summary trial application. Too often lawyers and legal support staff make the mistake of filing affidavits in summary trials that are no different than those filed for regular applications.

It is always a great exercise to review the requirements and considerations as it relates to the filing of Affidavits pursuant to Rule 9-7(5)(a).

Here is a list of a few key tips to follow and be aware of (although this may not be an exhaustive list):

1. Firstly, it goes without saying that Affidavits must be carefully crafted with facts organized in such a manner that make sense.
2. The material facts should be included.  Enumerating the facts in chronological order is helpful to the Court.  Tell your client’s story in such a manner that makes sense.
3. Ensure that the Affidavits are grammatically correct.  A second set of eyes is not a bad idea to check for run-on sentences and grammatical errors.
4. Stay away from inflammatory comments or irrelevant accusations (typically noted in family law cases but a tip worth noting.)
5. Ensure the opinions stated in the Affidavits are supported and admissible.  Of course, this is a task for professional expertise / counsel.
6. Do not append volumes of irrelevant exhibits to your Affidavits.  Carefully select supporting documents that speak to your facts.  Of course, this is the role of a professional / counsel to sift through the documents and identify relevant portions of documents.
7. Ensure the exhibits are in proper order.  The Courts have made it clear that they do not appreciate confusing material that is disorganized.
8. Remove any hearsay comments from your Affidavits and avoid adverse inference findings.
9. Hearsay should only be included if used to persuade a Court that a Summary Trial hearing is not appropriate.
10. If there is not direct knowledge of the facts by a party and that evidence needs to be presented to the court, than a separate affidavit from the individuals that do have direct knowledge must be sought.
11. If hearsay is included in your Affidavits, be sure to provide proper grounds for including such hearsay commentary.
12. Ensure that S. 42 of the Evidence Act is complied with.
13. Do not append “Without Prejudice” communication to your Affidavits – this is not acceptable and should not be overlooked.  Diligence is required!
14. Endorsement of Interpreter must be included if translation was necessary – this is a significant oversight if missed.
15. Review Affidavit evidence to identify any conflicts that may exist.

A quotation from the leading authority that sums up the importance of accuracy is noted in Inspiration Management Ltd., v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 at pp. 216-217, [1989] B.C.D. Civ. 3651-13 (C.A.):

It is unfair to scoop-load volumes of disjointed affidavits and exhibits upon the chambers judge and expect him or her to make an informed judgment. If counsel do not take care in the preparation of the material the chambers judge is entitled to send them away to put the material in proper order. Confusion in the form of mass disorganized fact and paper should not be permitted. 

Hearsay

Affidavit evidence must be based on personal knowledge. Where facts are based on “information and belief” these facts should not be included in your affidavit material in a Summary Trial application. The reason for this is facts based on “information and belief” are in breach of the hearsay rule, and therefore, these facts will be deemed inadmissible.

As noted in BMG Canada Inc. v. John Doe, [2005] 4 F.C.R. 81 (C.A.): at paras: 15 and 21:

The affidavits filed in support of the motion were deficient in that the evidence failed to satisfy the requirements of Rule 81 because “major portions of these affidavits are based upon information which Mr. Millin gained from his employees. Accordingly they consist largely of hearsay…. Mr. Millin gives no reason for his beliefs.

Much of the crucial evidence submitted by the plaintiffs was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted. Without this evidence there is no basis upon which the motion can be granted and for this reason alone the appeal should be dismissed.

 

In order to have hearsay admissible, a test must be established of necessity and reliability, which was outlined in R. v. B. (K.G.), [1993] 1 SCR 740, 1993 CanLII 116 (SCC), which was highlighted in Castellan v. Muncey (Estate), 2004 BCCA 128 (CanLII):

With respect to the principled approach to the hearsay rule as discussed in R. v. K.G.B., 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, the test of necessity was found to have been met because Mrs. Muncey was deceased, but the test of reliability was not thought by the chambers judge to have been met. The reliability, of course, is all bound up with credibility and, with respect, it seems to me that to make adverse findings on reliability without seeing the witnesses on whom the whole assessment of credibility depends, is a poor foundation for a finding of reliability or unreliability.

Affidavits on information and belief can be used in a Summary Trial application when the evidence is used for the purposes of persuading the Court that the matter should not proceed summarily. Calder v. King (1994), 1994 CanLII 2758 (BC SC), 91 B.C.L.R. (2d) 336.

Note that if your Affidavit contains hearsay evidence this may result in your Affidavit being deemed deficient and may be struck.  Also, it should be noted that an adverse inference may be drawn by the Court.  In Prodigy Graphics Group Inc. v. Fitz-Andrews, [2000] O.J. No. 1203) states:

Adverse inference may be drawn against a party for failure to submit relevant evidence which would be suspected to support the party’s case. The court may infer reasons for the evidence not being included.

Evidence / Business Records
By Savina Sohi, Lawyer, Family Law and Personal Injury Law

Section 42 of the Evidence Act: A statement of a fact in a business record is admissible as evidence of the fact if:

1.  the document was kept or made in the usual course of business; and
2. it was in the usual and ordinary course of business to record the statement of fact in the record. You will need to call the person responsible for making and keeping the business records to give evidence that the document is authentic, unless authenticity has been admitted.

Examples of Business Records:

1. Clinical Records
2. Police Records
3. Invoices
4. Bank Statements
5. Medical Records

How to tender a Business Record as Evidence

Any business record (eg: medical records) that are appended to an Affidavit should be sworn by the individual /expert that has provided the opinion.

In British Columbia (Public Guardian and Trustee of) v. Egli, 2003 BCSC 1716 (CanLII), this court held that medical records expressing an opinion as to the mental capacity of a patient were inadmissible for the truth of their contents where the person giving the opinion did not provide an affidavit.  Depriving a Defendant of their rights under the Rules will prevent Courts from utilizing their discretionary authority in allowing hearsay evidence.

“the defendants are entitled to require the authors of those opinions to be produced for cross-examination.  Fairness dictates that the defendants be permitted the opportunity to cross-examine on the opinions and that the issue of admissibility not be ignored in favour of an argument based solely on the weight to be attributed to the PMHC records.”

In order to append a business record to an Affidavit, the following must be satisfied:

1. Affidavit must be sworn by the direct source
   1. For example, if a party seeks to admit clinical records into evidence these records cannot be attached as an exhibit to an affidavit sworn by a paralegal. These records, however, can be admitted under s. 42 of the Evidence Act as business records.

An Affidavit from the record maker should be obtained stating the following:

• That the records were kept in the usual and ordinary course of business.
• That it was in the usual and ordinary course of that business to record particular facts in those records contemporaneously or within a reasonable time thereafter.
• That the facts set out in the records were recorded contemporaneously or within a reasonable time thereafter

Rule of Thumb: Do not append the entire Business Record to an Affidavit

• Example: Police Records:
• The entire police file is not admissible simply by attaching the file onto an affidavit sworn by an investigating police officer.
• There is considerable hearsay and double hearsay evidence contained in the police records. Some of the evidence may be admissible as business records under the Evidence Act, however, most will not be.
• For example, if there is a witness statement in the records, to be admissible at summary trial an affidavit from that witness will be required.
• Alternatively, a Notice to Admit could be served on the other party to obtain the admissions necessary to meet the Evidence Act requirements.

Calder v. King (1994), 1994 CanLII 2758 (BC SC), 91 B.C.L.R. (2d) 336., this is what you want to ensure you avoid:

“The defendants tendered the affidavit of Kelly Fisher, a legal assistant employed by the solicitors for the defendants.  Appended to that affidavit were documents such as ambulance reports, police accident reports, police diagrams and police- generated witness statements, to which Ms. Fisher ascribed her belief.  There are a number of authorities which hold that hearsay evidence is not admissible in a Rule 18A application, on the basis that judgment granted to a party on an 18A application is not an interlocutory order:

Without Prejudice Correspondence

Also be mindful that correspondence marked “Without Prejudice” due to settlement privilege should not be exhibited to any affidavit as they will be deemed inadmissible.

Endorsement of Interpreter

Where an affidavit is being translated to a client, a reminder that an Endorsement of Interpreter is required. The Court comments in Chun v. Smit, 2011 BCSC 412:

“The affidavits were, however, translated, and this was not evident on the face of the original affidavits tendered. This was a serious omission, which I granted the plaintiffs leave to correct. All affidavits that are prepared with the benefit of an interpreter must bear an “ENDORSEMENT OF INTERPRETER” as required by the Rules. Failure to do so deprives the court of significant information that may affect its assessment of the reliability of the evidence contained in the affidavit.”

As a final Order is being sought, it is imperative that your counsel is fully involved with finalizing the affidavit evidence. Paralegals who are knowledgeable on the facts and issues can certainly assist with drafting the affidavit evidence, but supervision is necessary under this application process.

Conflicting Evidence in the Affidavit Material

A very useful exercise to be aware of is that Affidavits filed by all parties should be carefully reviewed to identify any inconsistencies in the facts that have been enumerated.  It is common knowledge that a defence often raised in Court to support an argument that a matter is not suitable for Summary Trial is that there exists conflicting evidence in the Affidavit evidence, and therefore, the matter should not proceed by way of Summary Trial.

It is noted by the leading authority, however, that this is not necessarily a basis to deny a claimant’s right to proceed with Summary Trial on this ground, but there are factors that will weigh on this decision. The Courts can make a final Order despite the existence of conflicting evidence.

Note, in MacMillan v. Kaiser Equipment Ltd., 2004 BCCA 270 (CanLII), the summary trial judge determined that the case was suitable for summary trial despite the conflicts in the evidence.

The Court of Appeal said:

[22] The principles relating to the applicability of the summary trial procedure are not in dispute. It should be noted that the mere fact that there is a conflict in the evidence does not in and of itself preclude a chambers judge from proceeding under Rule 18A. A summary trial almost invariably involves the resolution of credibility issues for it is only in the rarest of cases that there will be a complete agreement on the evidence. The crucial question is whether the court is able to achieve a just and fair result by proceeding summarily.

It is key to be aware of the conflicts that exist in the filed materials as the Court will certainly scrutinize these conflicts to determine whether there are necessary facts to proceed with the Summary Trial application.

In Salem v. Priority Building Services Ltd., 2005 BCCA 617 (CanLII) the Court states:

“The fact that there is conflicting evidence in the affidavits filed on an application under Rule 18A is not an automatic bar to a summary trial.  In Placer Dev. Ltd. v. Skyline Expl. Ltd. (1985), 1985 CanLII 147 (BC CA), 67 B.C.L.R. 366 (C.A.), Taggart J.A., speaking for the Court, said, at 386,

. . . I am far from saying that the judge is precluded from finding facts where he has before him affidavits which conflict. The ability of the judge to find the necessary facts and to decide if it is just to resolve the issues before him will to a large extent depend on the nature and quality of the material before him. I think the rule contemplates that the judge may make the necessary findings of fact on conflicting evidence.”

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