Master MacLeod Proposes Guidelines for Solicitors’ Affidavits

In Mapletoft v. Service, Case Management Master Calum MacLeod decided a motion for summary judgment in a motor vehicle case. The defendant argued that the action had been commenced after the expiry of the limitation period. Our office opposed the motion, acting on behalf of the insurer of the plaintiff’s former solicitor. The principal issue was whether the “discoverability principle” created a genuine issue for trial, such that summary judgment should not be granted. The Master accepted our argument and dismissed the motion.

In the course of his reasons, Master MacLeod made some observations that are of more general application to motion practice and particularly, motions for summary judgment under Rule 20.

The defendant’s motion was supported by an affidavit from a partner of the lawyer who argued the motion. Objection was taken to the admissibility of the affidavit, on two bases: (1) that it was inappropriate for the defendant to rely upon an “information and belief” affidavit, where the source of the information was the solicitor who was arguing the motion; and (2) the defendant could not introduce medical evidence by simply attaching reports to a solicitor’s affidavit.

Solicitors’ affidavits

On the first issue, the Master concluded that the solicitor’s affidavit dealt largely with non-contentious issues, with the exception of one paragraph, which he struck out. However, in his reasons, he discussed this whole area of the law, with a view to developing some guidelines.

Master MacLeod reviewed the law with respect to the general rule against a lawyer being both counsel and witness. He noted that the rule is not absolute, but that when counsel gives evidence at trial without being removed from the record, it is “always with the specific approval of the trial judge in unusual circumstances”.

In this case, although the deponent of the affidavit said that he had been informed by counsel arguing the motion, the Master found that, with the exception of one paragraph, the affidavit could have been drawn solely from a review of the file and that therefore, the breach of the rule against counsel being a witness was really a technical one. As noted above, the Master struck out the offending paragraph of the affidavit.


Master MacLeod proposed three guidelines to assist counsel in the future. These are reproduced in full below, as we anticipate that they will be quite influential in future litigation:

  1. 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.
  2. 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.
  3. 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.

Introduction of medical reports

The Master rejected our argument, that medical reports cannot properly be introduced into evidence by attaching them as exhibits to a solicitor’s affidavit, at least not without complying with Rule 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.”) We had relied on the 1996 case of Golding v. Phillip, where it was held that doctors’ reports and medical records may be admitted into evidence by filing an affidavit in compliance with Rule 39.01(4) of the Rules of Civil Procedure or, in accordance with ss. 35 and 52 of the Evidence Act.

However, Master MacLeod attached significance to the fact that in the present case, the medical evidence upon which the defendant sought to rely came from reports and records that were among the plaintiff’s own productions. The Master said that “the purpose of the impugned portion of the affidavit was to put the plaintiff’s own productions produced in answer to an undertaking before the court. It was not inappropriate to do so and any flaw in the affidavit is again more formal than substantive”.

While we are obviously pleased with the Master’s disposition of the motion as a whole, we have some concerns about this aspect of his reasons.

It seems to us that whether or not the Master’s view is correct depends on whether the medical reports are being tendered simply as evidence of their existence or for the truth of their contents. With great respect, if the latter is the case, as we believe it to have been here, then the fact that the documents come from the productions of the opposing party is not a basis for admissibility on a motion. A party’s productions typically include all sorts of documents which were not authored by the party himself or herself. It seems to us that it is for that reason that Golding held that medical reports can be introduced on a motion through s. 52 of the Evidence Act. If recourse were had to s. 52 by one party on a motion, then it would be open to the opposing party to exercise his or her right to cross-examine the maker of that report.

If evidence can be placed before the court simply by attaching a document to an affidavit and saying that the document emanates from the opposing party’s productions, that party would lose the right to test the source of evidence over which the party has had no control.

So, for the medical evidence to be properly admissible on the motion, in our view, the solicitor’s affidavit should have said that the doctor was the source of the information and belief. Or, s. 52 of the Evidence Act could have been used. In either case, the opposing party would have had rights of cross-examination which were denied him in this case.

Motions for summary judgment

Master MacLeod’s reasons include a very useful discussion of the law pertaining to motions for summary judgment. He summarizes the extensive caselaw which, in the opinions of some practitioners, has made such motions almost impossible to win (particularly in discoverability situations). Through his analysis of this caselaw, the Master has extracted what he considers to be the guiding principles. He concluded that Rule 20 (which deals with motions for summary judgment) remains a “robust” tool for disposing of cases in which a trial is not necessary. As he put it, a motion for summary judgment involves “evidence about evidence”:

Summary judgment then cannot be used simply to dispose of cases that appear weak. The court is not permitted to substitute scepticism for due process or to put it another way, a motion under Rule 20 is not an exercise in considering the evidence that would be heard at trial and then reaching the conclusion the motions judge thinks the trial judge should reach. Rather it is a screening mechanism to determine if there is sufficient evidence to require a trial. In effect the evidence heard on the summary judgment motion is evidence about evidence. If it appears that the evidence available to the parties can lead inescapably to only one conclusion then there is no triable issue. In reaching the conclusion there is no genuine issue for trial, the motions judge may reject evidence such as a bald self-serving affidavit that could not persuade a trial court and may draw negative inferences from the failure to adduce stronger evidence but may not weigh evidence or assess credibility as such.


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