April 24, 2022
An affidavit is a written (usually typed) document that is sworn under oath or affirmed as being true before a commissioner of oaths or notary public. They are used in a variety of contexts to prove facts – ranging from proof of identity, to forming part of a construction tender, or an insurance proof of loss – but they are most typically used in court proceedings in place of requiring live testimony from witnesses. Almost all civil or family law motions involve affidavit evidence rather than live witnesses. Applications, the originating process designed for cases that likely will not require a trial, depend upon affidavits.
An affidavit is serious business. If you are asked to sign one, be aware that you are not just signing a document. You are saying it is as true as if you are giving live evidence in court. In addition to other issues, a false affidavit may lead to a charge of perjury, which has serious penalties.
Even lesser inaccuracies or ambiguities may reduce or completely destroy your effectiveness as a witness, and make a winnable argument a loser because of a slip of the pen. Live witnesses may suffer the same fate through a slip of the tongue, but there is something about the solemnity of live testimony that reduces errors. People might still tell untruths, or exaggerate on the stand, but seldom make as many accidental errors as in affidavits.
Just as live evidence may be tested in cross-examination, if you swear an affidavit, you may be cross-examined on what you said in it. Note that I wrote “what you said”, NOT “what it said” – because when you sign that document, the words on those pages become YOUR words, even if the affidavit, as usually happens, was prepared or drafted by someone else.
We see untrue, incorrect or inaccurate statements surprisingly often in practice. Several times a year, we read judgments where a court criticizes not only the honesty or reliability of the witness, but comments upon the excessively casual way in which affidavits are often drafted and signed. It is less common to see these comments in a case at the Ontario Court of Appeal.
Teefy Developments (Bathurst Glen) Limited v. Sun is an example where this happened on a motion to extend the time to file a Notice of Appeal. The test to extend time requires proof of an intention to appeal being formed on time, and an explanation why this did not happen on time. This requires an affidavit of the proposed appellant. In this action arising from a failed real estate transaction, the evidence did not meet the test.
The appeal justice hearing the motion, Justice Nordheimer, however, then went out of his way to comment about the affidavit. When a Court of Appeal judge adds something extra like this to their reasons, you know they are serious indeed, so we should take it seriously.
He said:
[9] I pause, at this point, to reflect on a rather disturbing issue regarding the moving party’s affidavit filed on this motion. Her counsel advises that the moving party does not read English. When I inquired how she could have then sworn her affidavit in these proceedings, I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign.
[10] It should go without saying that that is not the way that any affidavit is properly prepared. The deponent of an affidavit is required to review its contents and swear or affirm to its truth. It is the obligation of the person commissioning the affidavit to ensure, among other things, that he or she administers the oath or declaration in the manner required by law before signing the jurat or declaration: Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not understand English, then the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact.
[11] The result, in this case, from the apparent failure to follow those fundamental procedures, is that it calls into question the reliance that I can safely place on the contents of the moving party’s affidavit.
I bolded the last sentence of paragraph 9 and the second sentence of paragraph 10 because that is what is most important for you to consider and absorb. The remaining comments in paragraph 10 are important to those of us doing the commissioning. Paragraph 11 explains one of the bad things that happens when paragraph 9 or 10 is ignored.
My observation is that the problem is not limited to situations where you might not speak or read English. That is what the bolded part of the comments highlights. Too often, affidavits are treated as casually as if you were signing a COVID declaration, or a work order for car repairs. In fact, you might pay more attention when doing those everyday things, because you mistakenly believe that ‘the lawyer must have it right’ or ‘it must say what the lawyer wants it to say to win’.
Neither of these is safe or appropriate. Nothing sinks an otherwise winnable case faster than that moment in a cross-examination when you are asked to read a sentence or paragraph in YOUR affidavit – remember, these are now YOUR words – and explain what YOU meant, and the best that you can come up with is “I don’t know, I just signed what the lawyer wrote”.
As Justice Nordheimer put it in Teefy: “it calls into question the reliance that [the court] can safely put on the contents of…the affidavit.”
Avoiding this embarrassment, and increasing your credibility, is not difficult. It comes down to:
- reading the document carefully before you sign it;
- questioning anything that you do not understand;
- pointing out errors, or items you do not agree with; and
- requiring changes to be made.
Sometimes affidavits must be prepared in a hurry. Even in those situations, perhaps especially in those situations, you need to pause and take as much time as you need to be satisfied that YOUR words are true, and that if you are cross-examined on them, you will be able to explain what YOU said. Blaming the lawyer might be fun at the moment you say it, but the loss of reliability for ALL your evidence over one dumb slip up is anything but funny.
If your case goes to trial, an earlier affidavit might also be used to cross-examine you of your trial evidence is different. As the late great Lee Baig liked to put it to witnesses, especially police officers: “were you lying then or are you lying now?”
Remember, when we first draft your affidavit, we may not have all the facts, or we might not understand all the context or background required to put your story on paper. We might have made a note that is incomplete during an interview, and tried to ‘plug a gap’. We might have done research that put an issue in new light, and tried to reframe your story. So asking for changes or explanations is not an insult to us, it is expected.
You should hope and expect that where time permits, your lawyer will help you end up with an affidavit that is true, accurate, and also tells your story in a way that helps the case.
If I am commissioning your oath, I always expect that you will have read the document thoroughly and carefully. If I am drafting the affidavit, when time permits I take further steps.
The exact steps will vary slightly depending upon the circumstances, including:
- how comfortable I am with your experience as a witness;
- the complexity of the evidence;
- the importance of the evidence in the case;
- how confident I am that I understand the context;
- how confident I am in my notes, or my understanding of notes from others, including you;
- whether I had to ‘’plug a gap” in the story not expressly discussed; and
- whether I had to “reframe” the story as I drafted due to new evidence from others, or a changed appreciation of what evidence is relevant.
My frequently preferred approach in dealing with affidavits of any complexity, or which are essential to any important part of the your case, starts with:
- trying to know your story before I write it out for you;
- trying to have done enough research or know the topic well enough not to guess at gaps before we meet, to avoid gaps in drafting;
- knowing how I want to help you effectively tell your story after the last time we talk before I draft;
- as much as possible drafting in your voice – obviously, the better we get to know each other, the better I can do that;
- as much as possible, using words and phrases that come naturally to you, this makes cross-examination more comfortable; and
- avoiding, where I can, legalese or complex words that you might not understand, or that might just not be part of your normal vocabulary.
Once I have a draft that I am happy with, I like to:
- email you a draft of your affidavit;
- highlight in the cover email where I might have been unsure of the notes, or the facts, or the context;
- highlight where I might have filled a gap, asking you to particularly consider the accuracy of that passage, and make sure that you are comfortable with those words;
- explain where and why I might have reframed things from how you had first said them, or from how we had previously discussed them;
- expect you to read it thoroughly;
- ask you if any additional facts need to be added;
- ask you to make changes as you see fit;
- ask you to note anything you do not fully understand;
- ask you to send me any other questions or comments;
- ask you to make sure that you are happy to sign this as being YOUR words, not mine, because you might be cross-examined on it; and
- remind you that oaths or affirmations are serious acts not to be done casually.
Once I review your changes, considered your comments and answered your questions, ideally I will send you a revised draft, though sometimes depending on the changes, we might just review them in person, on the phone or over Zoom.
By then, we should be close to the final document and we meet in person or virtually, at which point I would ask you to read the final draft, make any last corrections, and have it commissioned.
Whenever convenient, I like to have someone else commission affidavits if I expect to be the lawyer using them. If there is a question about the act of commissioning, I do not want to become a witness. If I am a witness, then I cannot continue as your advocate. This seldom happens, but this is part of taking extra care. I also much prefer being an advocate over being a witness. I have done both, and have great respect for careful confident witnesses as a result.
Making you confident as a witness is part of what this process is about. The bigger picture is to present evidence that the court can rely upon, and that may help you win your motion, or your case.
Lawyers all have their variations on this recipe. If you check with law offices across Thunder Bay or Kenora, Dryden or Rainy River, practices will differ. Most are absolutely fine. A few might be less so. Otherwise, I would not have had real life experiences winning motions or applications after tripping up witnesses on cross-examination because they do not understand their affidavits.
At Weilers LLP, individual lawyers will not follow my pattern exactly as described – remember, even my approach varies – but we train our incoming lawyers to take the process seriously, and I share the message in this article with each of them. We take the practice of law seriously; we take your case seriously; we take your credibility seriously. As much as we like to have fun, and be comfortable to deal with, we are serious lawyers. If you are serious about your case, we might be the lawyers for you.
Whoever your lawyer might be, please do yourself a solid and do not just sign whatever they put in front of you.