Affidavits: A Reminder Not to Assume, Comment or Argue


Affidavits need to comply with the same rules that govern admissibility of evidence at trial.  Failure to do so can result in portions of affidavits being struck.   Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last month’s case (Haughian v. Jiwa) the Plaintiff was injured in a motor vehicle collision.  During a summary trial the Plaintiff introduced an affidavit from a witness who supported the Plaintiff’s version of events regarding the circumstances of the crash.  The affidavit, unfortunately, violated several evidentiary rules and the Defendant objected to its admission.  In striking portions of the affidavit the Court provided the following reasons:

[15] Rule 22-2(12) and 22-3(13) provides:

(12)      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 a trial.

(13)      An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a)        the source of the information and belief is given, and

(b)        the affidavit is made

(i)         in respect of an application that does not seek a final order, …

[16] As noted in Chamberlain v. Surrey School District # 36 (Surrey) (1998), 168 D.L.R. (4th) 222, 85 A.C.W.S. (3d) 72 (B.C.S.C.), by Saunders J. at para. 15:

[15]      The court has the power to strike inadmissible evidence from affidavits: Evans Forest Products Ltd. v. The Chief Forester of British Columbia (6 April 1995), Vancouver A943891 (B.C.S.C.) [summarized 54 A.C.W.S. (3d) 180].  In practical terms, when there is no time between the application to strike inadmissible evidence and the hearing of the lis, this means portions of filed affidavits are given no weight by the court.

[17] The witness was turning right onto Sunset Street.  He deposes the following in his affidavit (the bold portions are in dispute):

6.         At the time Mr. Jiwa turned left on to Sunset Street from Smith Avenue Southbound, I had been about to turn right onto Sunset Street from Smith Avenue Northbound.  Although I had the right of way to proceed onto Sunset Street, Mr. Jiwa was proceeding anyway so I braked and waited until it was safe to make my turn immediately after Mr. Jiwa made his turn.  Mr. Jiwa cut me off to make his turn and I am very confident that had I been continuing straight northbound on Smith Avenue instead of turning right onto Sunset Street, my vehicle would have been struck by Mr. Jiwa.

7.         I disagree with paragraph 11 of Mr. Jiwa’s affidavit.  It was very clear to me that Mr. Jiwa was in a hurry.  He was driving aggressively and too fast for the area.  He was driving dangerously immediately before the accident.

8.         When I turned onto Sunset Street at almost the same time as Mr. Jiwa, I immediately saw that Ms. Haughian’s vehicle was already in the process of parking.  I am certain that Ms. Haughian was not making a wide turn from the left lane at the time Mr. Jiwa struck her vehicle as Mr. Jiwa states at paragraph 12 of his affidavit.  I disagree that Mr. Jiwa was unable to stop before colliding with Mrs. Haughian’s car.  If Mr. Jiwa had not been speeding he had plenty of time to stop because I noticed the Plaintiff’s vehicle immediately upon turning onto Sunset Street and I was behind Mr. Jiwa.  Since I could see that Ms. Haughian was in the process of parking I cannot understand why Mr. Jiwa could not see that.

12.       After the accident, I gave my contact information to Ms. Haughian because I felt that Mr. Jiwa was absolutely the at fault driver.  Mr. Jiwa was driving too fast and could have avoided the accident.

13.       I provided a statement to ICBC on June 17, 2008. Attached hereto and marked as Exhibit “A” to this my affidavit is a true copy of the statement I provided to ICBC.  I do not have an unredacted copy of the statement.  I confirm that the contents of my June 17, 2008 statement to ICBC are true and accurately recount what I observed a the time of the accident.  I disagree only with: firstly that I observed the Haughian vehicle pulling in, and secondly that I referred to Mr. Jiwa as “Indo Canadian”.  As I did not sign the statement, I would have made those changes if I was asked to sign.

[18] The defendant seeks to have the bold portions struck as being hearsay, personal opinion, editorial commentary or argument rather than fact.

[19] The witness should have confined his evidence to facts.  He should not have added his descriptive opinions of those facts (see L.M.U. v. R.L.U., 2004 BCSC 95, at para. 40; Creber v. Franklin, 42 A.C.W.S. (3d) 231, at paras. 19-21).

[20] I agree that the portions of the affidavit that are in bold in paras. 6, 7 and 12 constitute personal assumptions, commentary and argument rather than fact.  However, I am not satisfied that the statements amount to hearsay, as alleged by the defendant.  Paragraph 8 is also struck for the same reasons with the exception of the first two sentences.  Given that the application to strike was concurrent with the hearing of this application, I place no weight on the portions noted when considering the issue of liability.

Affidavits, bc injury law, Haughian v. Jiwa, Mr. Justice Punnett, Rule 22, Rule 22-2, Rule 22-2(12), Rule 22-2(13)

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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