Using Affidavits

Rule 22-2 (12) of the Supreme Court Civil Rules [SCCR] states, “Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at trial.”

The law relating to the contents of affidavits is referred to in the case of Cunningham v. Slubowski, 2005 BCCA 260 at para. 2, where Justice Saunders discussed R. 51(10) under the former legislation, which is now R. 22-2(12), as follows:

Rule 51(10) of the Rules of Court requires that an affidavit containing information that is not personal information must be on information and belief. I am saying this again at the beginning of these reasons for judgment, in the hope that members of the Bar may be reminded of their obligation to put forward affidavits that are in a form that complies with the Rules.

In Barry v. Davis, 2021 BCSC 546 [Barry], counsel for the respondent had provided information to a legal assistant, who subsequently swore an affidavit containing that information.

At para. 65, Justice Forth cited para. 19 of Jamal v. Jamal, 2016 BCSC 551 for the proposition that “(s)tatements in an affidavit that are clearly not facts from personal knowledge, conclusion, or opinions are clearly not admissible at law.”

In Barry at para. 66, Forth J. also cited para. 36 of Drinkall v. Drinkall, 2016 BCSC 373 for the following proposition:

“It [is] not helpful to have legal assistants swear affidavits on information and belief from a party as to contested facts which need to be determined by the court.”

Justice Forth ultimately found that the affidavit was not admissible as it was replete with inadmissible hearsay.

Personal knowledge arises from events or occurrences which the affiant has witnessed or experienced first hand. Reading a document or being told of an event creates a situation where the affiant is relating hearsay, not personal knowledge about which a witness could testify at trial. See L.M.U. v. R.L.U., 2004 BCSC 95 at paras. 32–37.

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