In Kailayapillai v. Azzam, Mr. Justice Theodore Matlow has addressed a very frequently recurring practice point: the proper form of lawyers’ affidavits on information and belief, where the source of the information is not another human being but rather, “the file”. His Honour adjourned this motion, to be brought back on further and better evidence.
This was a motion by an insurer to recover $65,000 that it had paid out under its uninsured motorist coverage. The insurer had settled with the injured plaintiff and was seeking reimbursement from the uninsured motorist. (The insurer might want to look first at the recent Court of Appeal decision in Lockhard v. Quiroz before bringing the motion back on for hearing.) The motion was supported by an affidavit sworn by a partner at the law firm representing the insurer. That lawyer had evidently had little direct involvement in the handling of the file.
Justice Matlow declined to decide the motion on its merits because he was dissatisfied with the evidence that had been placed before him, viz., the lawyer’s affidavit.
He noted, first of all, that the deponent swore to having “knowledge of the matters hereinafter deposed”, but did not swear that she had “personal knowledge” of them.
But his more serious concern was with repeated statements by the deponent, that “I am advised by file review and do verily believe…” various matters that were signfiicant for a decision on the motion. Justice Matlow condemned the formulation that had been used in the affidavit:
In my view, it is improper for a deponent to offer evidence based on a review of someone else’s file and then to claim that she was “advised by the file” and truly believes the contents in order to allow her to rest her evidence on rule 39.01 (4). That rule requires that the advice be from a person whose reliability and credibility can be assessed. The reliability and credibility of a file, even if it were able to “advise’, without more, could not be.
As with all motions, it is not proper for a lawyer to take a file from somewhere in her office, read parts of it and then set out facts gleamed from the file as if those facts were based on her “knowledge”. Nor is it proper to for a lawyer in such circumstances to represent that she had some dialogue with the file and that the file “advised” her of its contents to enable her to invoke and rely on rule 39.01 (4).
In our experience, this sort of thing happens very frequently. (And we do not profess absolute purity on this score ourselves, although we will certainly try to do better in the future!)
Justice Matlow makes the valid point, that when “the file” is the source of the information, there is ultimately no witness before the court whose credibility can be tested.