Affidavits in Support of Motions

Affidavits in Support of Motions To be advised and verily believe or not to be advised and verily believe: That is the question Presented by: Robert Zochodne November 20, 2010 30 th Civil Litigation Updated Conference Fairmont Le Chateau Montebello, Montebello, Québec ZOCHODNE BUCCI 106 Stevenson Road, South Oshawa, ON L1J- 5M1 Tel: (905) 576-5153 Fax: (905) 571-4376

2 INTRODUCTION This paper deals with two different but somewhat related topics. The first is the application of Rule 39.01 of the Rules of Civil Procedure, as it relates to the use of affidavit evidence on the hearing of a motion where the evidence sought to be tendered is not within the personal knowledge of the deponent. The second topic relates to those circumstances where counsel seeks to rely upon an affidavit sworn by a lawyer. AFFIDAVITS BASED UPON INFORMATION AND BELIEF Unlike evidence tendered at a trial, generally hearsay evidence can be tendered at the hearing of a motion. However, the form and content of an affidavit containing hearsay evidence must comply with the requirements set out in the Rules of Civil Procedure. follows: The starting point is Rule 39 of the Rules of Civil Procedure, which provides inter alia as 39.01 (4) An affidavit for use on a motion may contain statements of the deponent s information and belief, if the source of the information and the fact of the belief are specified in the affidavit. The current Rules of Civil Procedure came into force in 1985.

3 Cases decided under the Rules as they existed prior to that date consistently ruled that hearsay evidence within affidavits would be disregarded where the source of the information and the fact of the belief were not specifically disclosed. It is for this reason that the current Rule 39.01 (4) was continued in the Rules of Civil Procedure in 1985. However, the case law took a decidedly different turn after the new Rules came in to force, despite the above. The first decided case dealing with this issue after the new Rules was the decision of the Ontario District Court in Abco Box & Carton Co. v. Dafoe & Dafoe Inc. 1 from 1986. The affidavit considered by Justice Hudson was that of the Plaintiff s President and the affidavit in question did not specify the source of the deponent s information and the fact of his belief with respect to an issue before the Court. Justice Hudson cited the practice under the previous Rules, as set out above, but also cited a new provision in the Rules, namely Rule 1.04 (1) of the Rules of Civil Procedure, which states the following: Rule 1.04 (1) These Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. following: With this new provision, and in all the circumstances, Justice Hudson stated the 1 (1987) CarswellOnt 196, 65 C.B.R. (N.S.) 292, 20 C.P.C. (2d) 128

4 In my opinion, the former practice should not be continued in a case that is as clear as the one with which I am now dealing. 2 Justice Hudson permitted the evidence; however, perhaps out of respect for previous authority and the clear wording of Rule 39.01(4), Justice Hudson awarded no costs as a sanction for the failure to set out the source of the deponent s belief. In D Angelo v. Maco Security Monitoring Inc. 3, Justice O Neill was called upon to determine whether or not the Defendant s motion should fail as a result of what was alleged to be an improper affidavit. Once again, as in Abco, objection was taken because the affidavit in question did not clearly specify the source of the information and belief of the deponent. Justice O Neill summarized the laws as follows: In determining the sufficiency or otherwise of the affidavit material, and whether or not I am able to rely on the copy of the service agreement attached as Exhibit D to the said affidavit, I bear in mind the following legal principles: 2 Ibid, para. 17. 3 (2006) CarswellOnt 5405, 151 A.C.W.S. (3d) 389

5 (i) The rules of civil proceeding shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits Rule 1.04 (1). (ii) Where as affidavit relied upon on a motion for summary judgment does not state the source of information and the fact of the deponent s belief, the court may nevertheless rely upon the substance of the exhibits to the affidavit in evaluating the merits of the affiant s case. See Abco Box & Carton Co. v. Dafoe & Dafoe Inc., [1987] O.J. No. 2395 (Ont. Dist. Ct.). (iii) Paragraphs in affidavits for use on motions or applications which fail to state the source of the information are not automatically struck out. Paragraphs in affidavits which fail to state the source of the information and the belief as to non-contentious matters can be saved through the application of Rule 1.04 of the Rules of Civil Procedure, R.C.P. See Cameron v. Taylor (1992), 10 O.R. (3d) 277 (Ont. Gen. Div.). (iv) In an application to set aside a default Judgment, despite an applicant s failure to set out facts relied upon in an affidavit to indicate a good defence on the merits and exercise more care in drafting the affidavit, the court will not deny the litigant s action without an opportunity for trial on the merits. See Lloyd v. Manufacturers Life Insurance Co., [1989] N.S.J. No. 125 (N.S. C.A.) 4 Justice O Neill permitted the Affidavit, stating the following: 4 Ibid, para. 27.

6 I am persuaded, on the basis of the information provided at the hearing of the motion before me, and on the basis of submissions made by the parties, that the authenticity of the service contract was not an issue for the purpose of dealing with the motion before me. It clearly would have been preferable for an individual from Maco with more knowledge about the circumstances of this contract to be present for crossexamination. However, it must be born in mind that on a motion to set aside default judgment, the court is required to look at the three factors set out earlier in these reasons. At this stage of the litigation, what was really in issue was whether or not there were sufficient facts to support the conclusion that there was at least an arguable case to present on the merits. 5 Despite the above, when it came to deciding costs, Justice O Neill would have otherwise fixed costs at $1,750.00, but reduced the costs because of the issues regarding the sufficiency of the Affidavit evidence to $1,000.00. If the costs sanctions imposed in the previous two decisions did not serve to alarm the practicing bar of the pit falls of delivering information and belief affidavits where the source of the belief was not clearly specified, then the point was more clearly driven home in Carevest Inc. v. North Tech Electronics Ltd. et al. 6 This matter concerned a motion for summary judgment. 5 Ibid, para. 28. 6 2010 CarswellOnt 2927, ONSC 1290 (Ont. Div. Ct. May 3, 2010).

7 The affidavits in issue included one sworn by an executive of the Plaintiff, which included the following words following the statement that he had knowledge of the matters to which I herein depose. The facts set forth herein are within my personal knowledge or determined from the face of the instruments and documents attached hereto as exhibits and from information and advice provided to me from Mark Hartman, a partner with Chaitons LLP or Jill Plasteras, Vice President, Mortgage Services. Where I relied upon such information and advice, I verily believe same to be true. Another affidavit filed by another executive of the company, stated: The facts set forth herein are within my personal knowledge or determined from the face of the instruments and documents attached hereto as exhibits, from my review of the relevant documents comprising the files of Carevest and from information and advice provided to me from others. Where I relied upon such information and advice, I verily believe same to be true. above. A third affidavit filed contained the same wording as set out in the first affidavit cited

8 At first instance, Justice Matlow refused to admit two of the affidavits cited above. In so deciding, Justice Matlow stated the following: I conclude, therefore, that the Affidavits violate the Rules referred so extensively that neither can be admitted into evidence. 7 In coming to this decision, Justice Matlow stated as follows: In my view, it is not sufficient for a deponent to state that he or she was informed by one or more documents. The source of the information must be a named person. There is no assurance that the facts inferred from a document created by others in circumstances unknown to the deponent that is not otherwise admissible can be relied upon. Nor is it sufficient for a deponent to state that his or her evidence is a combination of personal knowledge and hearsay evidence without distinguishing which parts of his evidence are personal knowledge and which parts are hearsay. Each piece of hearsay evidence must be clearly identified as such and the source of the information and the fact of the belief must be stated. 7 Carevest Capital Inc. v. North Tech Electronics Ltd. 2009 CanLII 19931 (ON S.C.), para. 23.

9 Information that is expressly stated to be double hearsay is inherently unreliable. 8 This decision was appealed to the Divisional Court. The Divisional Court reversed the decision, stating the following: The findings of the Motion s Judge are contrary to case law, which sets out the appropriate legal principles in determining the sufficiency or otherwise of the affidavit material before the Motions Judge on a summary judgment motion the principles that emerge from the case law are: 1. The rules of civil procedure are to be liberally construed so as to secure the most just, expeditious and least expensive determination of a proceeding. 2. Where an affidavit relied upon in support of a motion for summary judgment does not state the source of the information and the fact of the deponent s belief, the court may nevertheless rely upon the substance of the exhibits to the affidavit in evaluating the merits of the applicant s case. 3. Statements in affidavits based on information and belief that fail to state the source of the information are not automatically struck 8 Ibid, paras. 18-20.

10 out. Statements that deal with non-contentious matters can be saved through the application rule 1.04 of the Rules of Civil Procedure. 9 In coming to the determination, the Divisional Court referenced the fact that the affidavits in question were not contentious. It was also noted that the issue was not raised by counsel during the course of argument. What is to be learned from these decisions? Simply, proceed with caution. Notwithstanding the fact that the Rules of Civil Procedure are to be liberally construed and notwithstanding the fact that information and belief affidavits are permitted, counsel should be very careful when submitting such affidavits for use on motions. The simplest way to think about this is to trust your common sense. Hearsay evidence is largely not admissible in court proceedings. Think of information and belief affidavits as a strictly construed exception to that rule, and you will have the right frame of mind when drafting. While information and belief affidavits may be convenient and perhaps expeditious, where a particular fact may be contentious, it is strongly recommended that counsel take the time in drafting to ensure that the source of the information and the fact of belief are clearly specified for each and every fact within the affidavit that is not within the personal knowledge of the deponent. As will be noted in the second part of this paper, there have been comments from the judiciary from time to time with respect to the tactical use of information and belief affidavits. 9 Supra, footnote 6, para. 16.

11 For example, if such affidavits are delivered for the purpose of insulating someone from being cross-examined, there is a risk. There will be more about this later in the paper. From my perspective, if I have to rely upon Rule 1.04 when an affidavit I filed is called in to question, I should take away from that experience to resolve to take more care in drafting the next affidavit, given that what I am asking for, in essence, amounts to an indulgence from the court to permit otherwise inadmissible testimony. SOLICITORS SWEARING AFFIDAVITS follows: A useful starting point in the discussion is a quote from Justice Hughes in 1966 as I wish to deal briefly with one other matter and that relates to what I see as an increasing use on chambers applications of affidavits sworn by solicitors. There are situations were such affidavits are not only acceptable, but desirable. I refer principally to applications involving matters of procedure or practice, such as a search of records However I do not consider this practice to be desirable in those instances, such as the one now before me, where the facts to be deposed to are within the knowledge of the litigant. Even in such a situation, there may be unusual circumstances where the solicitor also has knowledge of the facts and accordingly, his affidavit might be used, but in such a case the responsibility of a solicitor who undertakes to make an

12 affidavit on behalf of his client in a very serious one and calls for scrupulous care on his part. 10 This case highlights the tension between two competing principles. On the one hand, certain practical realities often result in a solicitor swearing an affidavit on behalf of a client with regard to a pending motion. On the other hand, the court should always be provided with the best evidence on any particular point to be decided. While we often see the line as the difference between the contentious and non contentious, the distinction is not always clear. A leading case on the topic is Imperial Oil Ltd. v. Grabarchuk. 11 Schroeder J.A. stated the following: Both counsel for the appellant and the respondent who appeared before this Court had made affidavits which had been submitted to the Court of first instance in support of and in opposition to the appellant's application. It was not until the question was raised by the Court that either counsel appreciated the impropriety of counsel who had been a witness in the proceedings appearing as counsel on the appeal. This is a well-settled rule which the Court has strictly enforced over the years. In the circumstances we felt it necessary to adjourn the hearing of this 10 Delta Accept. Corp. Ltd. v. E.K. Motors Ltd. (1966), 57 W.W.R. 723 (Sask.) 11 (1974), 3 O.R. (2d) 783 (Ont. C.A.).

13 appeal to the May sittings in order to facilitate the appointment of other counsel for both parties. 12 In Essa (Township) v. Guergis 13, a decision of the Ontario Divisional Court in 1993, the situation was slightly different. An affidavit was sworn by a lawyer who was co-counsel with the lawyer who was arguing the motion. The Defendant sought to strike the motion before the court alleging, in part, that as the affidavits were sworn by co-counsel of the lawyer arguing the motion, the affidavits could not be relied upon. At first instance, it was ordered that the motion be adjourned to permit either new affidavits to be filed or new counsel to be retained. Appeal of that decision was taken to the Divisional Court. The Court started from the proposition that it is not proper for a lawyer to swear an affidavit and act as counsel relying upon the affidavit, consistent with the decision in Imperial Oil Ltd. v. Grabarchuk 14. However, as previously stated, in Essa, the situation was slightly different. In Essa, the co-counsel swore the Affidavit rather than the lawyer arguing the motion. The Divisional Court highlighted the difference between the Rules of Professional Conduct of the Law Society of Upper Canada and the Canadian Bar Association Code of Professional Conduct as it concerned that issue. 12 Ibid, para. 2. 13 1993 CarswellOnt 473, 22 C.P.C. (3d) 63, 15 O.R. (3d) 573, 52 C.P.R. (3d) 372 14 Supra, note11.

14 Although the Rules of Professional Conduct of the Law Society of Upper Canada have been revised significantly over the years, the relevant section remains substantially the same as it did when Essa was decided. This current rule (Rule 4.02 (1)), provides as follows: Rule 4.02(1) Subject to any contrary provisions of the law or the discretion of the Tribunal before which the lawyer is appearing, a lawyer who appears has advocate and must show/admit his or her own Affidavit to the Tribunal. On the other side of the coin, the Canadian Bar Association Code of Professional Conduct states the following: The lawyer who appears as an advocate should not submit the lawyer s own affidavit to or testify before a tribunal save as permitted by a local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer s partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. In Essa, The Law Society of Upper Canada intervened in the appeal and the Divisional Court accepted the submission of LSUC counsel that the court should not follow the CBA Code but rather take note of the fact that the Law Society Code did not prohibit this type of affidavit.

15 In the result, the Divisional Court ordered the motion judge to proceed to hear the motion, based on the affidavits filed. In passing, the Divisional Court stated the following: As a matter of interest, I note that counsel for the Defendants in this matter relied on affidavits sworn by secretaries in the office of that defence counsel. Those affidavits contain statements of information and belief, based on what the secretaries had been told by defence counsel who were appearing on the motion. Some of that information and belief went to the root of the contempt matters. The issue of that counsel appearing on the contempt Motion was not raised on this Appeal and I therefore, do not deal with that point specifically. I understand the problem frequently arises in the offices of counsel practicing alone. I suggest, however, the use of such Affidavits should be avoided. 15 This is to be contrasted with Manraj v. Bour 16. In that case, at the hearing of a motion, counsel opposing the motion took the position that the counsel opposite should not be entitled to rely upon an affidavit where the counsel arguing the matter (Mr. Baksh) was the source of much of the information and belief within the Affidavit. 15 Supra, footnote 13, paras. 33 and 34. 16 1995 CarswellOnt 1335,44 C.P.C. (3d) 111, 58 A.C.W.S. (3d) 330, 6 W.D.C.P. (2d) 441, [1995] O.J. No. 3008 (Ont. Gen. Div. Sep 20, 1995).

16 Madam Justice Kiteley stated the following: It is apparent then that the source of the evidence on behalf of the moving party about delivery of the account is effectively from Mr. Baksh, even though he is not the deponent. The issue of delivery of the account is an important issue before me in the matter today. It is a reasonable extension of Imperial Oil that Mr. Baksh not be permitted to make submissions and I so ordered. 17 In Weber v. Erb & Erb Insurance Brokers Ltd. 18, Mr. Justice Gordon reviewed a circumstance where an affidavit was sworn by a partner of the lawyer arguing the motion. Opposing counsel sought to have the affidavit struck. Justice Gordon struck the Affidavit. He stated the following: Solicitor s affidavits, as here, often contain hearsay evidence, which, generally speaking, is unreliable. The solicitor is exposed to crossexamination, a futile exercise as there is no personal knowledge, but might, by necessity, expose communications between client and counsel. In comes cases, the purpose of the solicitor s affidavit is to shield the client from cross-examination. Such is improper. 17 Ibid, para 6. 18 2006 CarswellOnt 1919, [2006] O.J. No. 1279 (Ont. S.C.J. Mar 31, 2006).

17 The principles enunciated in Rule 4.02 and in prior Court rulings extends to the partners of counsel, as well as other members or employees of the firm. Far too often, affidavits from solicitors, or other persons in the employ of the law firm, are tendered in contentious proceedings. This is an unacceptable practice. The best evidence is from a deponent with actual knowledge, usually the client. The solicitor, as here, relies on others for information. As subsequently discovered, the information was incomplete, which further demonstrates the danger associated with the use of such affidavits. 19 I would also point out in passing a decision of the Financial Services Commission of Ontario in 2006, Smirin v. ING Insurance Co. of Canada 20, where Arbitrator D. Leitch adjourned a hearing where counsel was the principal source of information within an affidavit which touched upon a contentious issue in the proceeding. 19 Ibid, paras. 35, 37 and 39. 20 2006 CarswellOnt 3590.

18 CONCLUSION All of this leads me to the following cautionary notes arising from the use of an affidavit sworn by a lawyer or a staff member of a law firm. No matter the instance, counsel should be guided by what I would describe as a best evidence litmus test. While there is good authority to permit such affidavits before the court, counsel should make every effort to put forward the best available evidence in every circumstance. As the facts within the affidavit become more contentious, courts appear to be more reluctant to permit lawyers to argue motions using affidavits sworn by partners or associates or members of their staff. While relying upon such affidavits may be necessary or prudent or tactically sound in certain circumstances, counsel must bear in mind that the more controversial the affidavit, the greater the risk that the court might deem the affidavit to be lacking. Robert Zochodne ZOCHODNE BUCCI November 20, 2010.