Lawyers’ affidavits: beware!

Another decision of Justice Frederick L. Myers. I can’t help it, he’s very quotable.

In Ferreira v. Cardenas, 2014 ONSC 7119 (CanLII), he was dealing with a motion for summary judgment on the liability issue in an action arising out of a motor vehicle case.

(I would say, parenthetically, that I have noticed a significant increase in the number of MVA cases in which courts are being asked to decide the liability issue, or part of the liability issue, on a motion for summary judgment. And for the most part, the decisions are being made.)

In this case, one defendant was seeking the dismissal of the contribution crossclaim being made by another defendant. The only evidence filed on behalf of the defendant who was responding to the motion was an affidavit of his lawyer. The affidavit reviewed various aspects of “the file” (the police report, the discovery evidence of the plaintiff) and the lawyer concluded, in her affidavit, that “there are genuine issues requiring a trial”.

Justice Myers was not impressed. He commented that “Lawyer’s affidavits that recite background gleaned from ‘the file’ are especially problematic”, a point that was made some time ago by Justice Theodore Matlow in some cases that I discussed in this column. (In his rulings, Justice Matlow had refused to admit certain affidavits but in one of them, he was reversed by the Divisional Court. However, it looks like the propriety of affidavits based on a review of “the file” are being called into question again.)

Justice Myers cited with approval a decision of Master Calum MacLeod, who laid down some guidelines about lawyers’ affidavits: Mapletoft v. Christopher J. Service2008 CanLII 6935 (ON SC). Those guidelines probably bear repeating, since Justice Myers ignored the affidavit of the lawyer in this case and proceeded to give judgment against her client:

15.  For the guidance of counsel in future, I propose the following guidelines:

a)      A partner or associate lawyer or a member of the clerical staff may swear an affidavit identifying productions, answers to undertakings or answers given on discovery. These are simple matters of record, part of the discovery and admissible on a motion pursuant to Rule 39.04. Strictly speaking an affidavit may not be necessary but it may be convenient for the purpose of organizing and identifying the key portions of the evidence. Used in this way, the affidavit would be non-contentious.

b)      If it is necessary to rely on the information or belief of counsel with carriage of the file, it is preferable for counsel to swear the affidavit and have other counsel argue the motion.  This approach will not be appropriate for highly contentious issues that may form part of the evidence at trial.  If the evidence of counsel becomes necessary for trial on a contentious issue, it may be necessary for the client to retain another law firm.

c)      Unless the evidence of a lawyer is being tendered as expert testimony on the motion, it is not appropriate for an affidavit to contain legal opinions or argument.  Those should be reserved for the factum.

In the post-Hryniak world, in which we will be seeing more motions for summary judgment, affidavit protocol is likely to acquire greater importance. Following the Mapletoft principles and avoiding affidavits that are based upon a “review of the file” are probably a good place to begin.

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