Tag: Affidavits

The "Acceptable Practice" For Taking Pre-Trial Witness Statements

Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.
In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records.  The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.
The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses.  In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:
[6]             The question which arises is the propriety of recording statements of witnesses in sworn form before trial.  Statements in sworn form should not be taken.  The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit.  To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement.  Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.
[7]             If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court.  No such application was made relating to the evidence of these three affiants…
[9]             Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61).  That was not done.
[10]         When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination.  That is what occurred and those orders were made.
[11]         In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn.  First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants.  Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial.  Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident.  Fourth, the affidavits did not concern controversial matters.
[12]         In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying.  Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.

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.

More on the Affidavit Evidence Prohibition At TMC's and CPC's


Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

Can Lawyers Swear Affidavits In Support of Their Clients Interlocutory Applications?


In British Columbia the short answer is yes.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic at length.
In last week’s case (The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency) the Plaintiff’s lawyer filed an affidavit in support of two applications of the Plaintiff.  The Defendant objected to this arguing that it was an improper practice and breached the principles set out in the Canadian Bar Association’s Code of Professional Conduct and the BC Professional Conduct Handbook.  Mr. Justice Harris disagreed and provided the following helpful reasons:

[15] No authority was cited to me in that establishes a binding general rule that solicitors cannot not swear affidavits in interlocutory proceedings in which they or their firm are counsel. To the contrary, even the professional guidelines support such a practice within limits. The case law also indicates that counsel is legally competent to swear an affidavit, even in relation to matters in dispute, although that practice is to be discouraged: see, National Financial Services Corporation v. Wolverton Securities Ltd. (1998), 52 B.C.L.R. 302 (S.C.) at para. 7.

[16] The Canadian Bar Association Code of Professional Conduct qualifies its statement of principle about lawyers swearing affidavits by referring to local rules or practice authorizing lawyers to do so. In British Columbia it is the practice for counsel to swear affidavits, on occasion, particularly in respect to uncontroverted matters or matters relevant to the interlocutory issue before court. The practice obviously carries risks, not least that a solicitor may be cross-examined on the affidavit, waive privilege or may succeed inadvertently in putting his or her credibility in issue. There are many good reasons for counsel to take great care in swearing affidavits in cases in which they are counsel.

[17] Nonetheless, there are occasions when the use of counsel affidavits is justified as a matter of practice. Sometimes, at least in respect of interlocutory matters, the evidence of counsel may be the best evidence available. It may often be economical and timely to have counsel swear an affidavit in support of interlocutory application. Introducing a legal rule that upset this practice would defeat the object of the Supreme Court Civil Rules to secure the just, speedy and inexpensive determination of every proceeding on its merits including conducting the proceeding in ways proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding.

[18] Equally, the fact that the affidavit contains some evidence on information and belief provided to the affiant by Mr. Sanderson who then commissioned the affidavit and argued the matter in court does not in itself compel the conclusion that the affidavit is inadmissible. I was not taken to any particular examples of information provided by Mr. Sanderson that gave rise to a concern that counsel were merely attempting to circumvent the professional guideline that counsel should not speak to their own affidavits, particularly if the subject matter is contentious.

[19] In my view, it would be a mistake to recognize or create a special rule requiring the rejection of affidavits sworn by counsel if those affidavits contain both admissible and inadmissible evidence. Insofar as admissibility is concerned, solicitors’ affidavits are governed by the same rules as any other affidavit. Inadmissible content may be ignored or formally struck, but the affidavit as a whole need not be rejected.

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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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