D. Affidavits

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 542-543

Page 542

An affidavit is not a statement of defence and should not be drafted in that fashion. If each affidavit recites only facts, all the necessary information will be before the court. The nature of the relief sought will appear in the pleadings and argument will be presented by counsel.³²A solicitor is not a party to the action and should not swear an affidavit on behalf of a party that goes to the merits of the case. Although courts have been lax in permitting solicitors to argue cases based on their own affidavits, the practice should be discouraged. A solicitor who swears an affidavit going to the merits of a case or of a motion is in the same position as a solicitor who finds himself on the witness stand; the solicitor should not be heard as both witness and counsel in the same matter.³³A respondent’s affidavit may be struck out for failure to attend an appointment for cross-examination on the affidavit.³⁴Rule 314(1) of the Alberta Rules of Court³⁵allows for cross-examination on an affidavit. The scope of the cross-examination extends to anything relevant to the issues before the court for which the affidavit is being used. Cross-examination is not limited to the "four corners" of the affidavit and may cover all the facts relevant to the whole of the application for which the affidavit is filed. Even if a question is not relevant to the application, it may be allowed in that it questions the truth of a statement contained in the affidavit. While relevance to the pending motion is the determining factor in setting the scope of cross-examination on an affidavit, the court also retains discretion as to whether a question on cross-examination should be answered.³⁶The contents of affidavits filed in support of an application for an interim support order are circumscribed under Rule 56A.20 of the Newfoundland and Labrador Rules of the Supreme Court,³⁷which provides that affidavits should be confined to facts that the deponent has personal knowledge of, although hearsay evidence may be included under Rule 56A.20(2) where the source of the information is specified. The facts contained in the affidavits should be relevant to the relief sought and should not contain allegations that are unnecessary, inflammatory, or amount to an abuse of the court’s process. Rule 56A.20, like most of Rule 56A, has been substantially borrowed from the Saskatchewan Queen’s Bench

Page 543

Rules and insights into the appropriate contents of affidavits may...