Navigating the court system is intimidating. For one thing, there are a lot of unfamiliar words that one needs to learn to understand the rules of procedure. One such word is “affidavit”. The word “affidavit” simply means “sworn statement” in writing. For example, suppose you wrote down on a piece of paper, “My name is John Doe. I went to the grocery store on May 15, 2020 at 8 pm”. This would be an affidavit if you swear in front of the Commissioner of Oaths (or affirm if you are not religious), that what you wrote down is true, sign the piece of paper, and ask the Commissioner to stamp and sign as well.
There are several instances where one might need an affidavit during litigation. The most common types of affidavits are: “Affidavit of Service”, “Affidavit of Documents”, and just plain “Affidavit” that must be included in the paper work for motion hearings.
The first two types are quite straightforward. An Affidavit of Service is a formal court document that says you served another person something (eg. paperwork for a hearing), by a certain method (eg. fax/email/in person). Affidavit of Service is required for many steps in matters at the Ontario Superior court. For an example, if you are a defendant, and you are responding to a claim with a Statement of Defence, you need to make sure your opponent gets it first (“served the plaintiff”) before filing at the court house. However, the court clerk would want to make sure that you are not just pretending that you served the plaintiff your Statement of Defence. Therefore, a rule is in place that requires you to have sent (or “served”) the plaintiff your statement of defence and you have to swear that you did, in an Affidavit of Service, before you are allowed to file it at the court house. See our video “Affidavit of Service”. (Other courts and tribunals have different formats, but the idea is the same.)
An Affidavit of Documents is required in the Rules of Civil Procedure. This is simply a document that contains a list of documents that the affiant wishes to rely on in support of their case. The idea here is that parties should know what documents the other has against them, so that there will be no surprises. Our civil procedure frowns upon torpedo type tactics, that is, dramatically presenting a “smoking gun” document during trial, without any warning to the opponent.
The third type, plainly called Affidavit, requires some explanation. Normally, a civil lawsuit is brought when a person wants the court to order someone else to do something (eg. stop making knock offs of one’s product) or pay money (eg. pay you compensation because they committed some sort of injury or wrongdoing to you). The court has to make sure that its authority is used wisely and fairly. To properly adjudicate a matter, it is important to have accurate facts at court. Therefore, litigants are required not only to simply tell their story, but also provide any physical proof or support to their story. When it comes to a litigant telling “what happened”, the court wants to impress on the litigant that this is a very serious thing they’re doing. They should not just tell their story in a casual way, or make up details. They should be telling their story as truthfully, and as accurately as they can possibly do. In the old days, if a person is asked to swear by the Bible that they are telling the truth, the affiant is genuinely afraid that God will punish them if they were untruthful. Nowadays, the idea behind requiring someone to swearing an affidavit in front of an authorized person (“commissioner”) is to impress upon the affiant the seriousness of what they are saying. This is why you see in movies that witnesses are asked to place their hand on the Bible and swear they will tell the truth, before they give their testimony on the stand.
Trials are not the only court hearings in lawsuits. There are what is called “motions”. These are like mini court hearings to ask the judge for a court order, usually to get the other side to comply with a certain rule. Like trials, there is a judge (or master if you are in Toronto) to preside over the hearing. But unlike trials, no witnesses are called to the stand to testify live in person. Instead, testimony is in written form via affidavits from the parties. These are filed at court before the hearing, so that the judge/master can read them before hand. Furthermore, an affidavit for a motion can include what is called “exhibit”. These are documents that you want to show the court to support your case, such as receipts, contracts, photographs etc. Each exhibit is also stamped by the commissioner, again, to remind the affiant that each piece of physical evidence must be genuine and authentic, not fabricated just to win the lawsuit. The thing to remember is that affidavit in motions can be thought of as testimony in writing. It is a way for litigants to “tell their story”, not orally on the stand, but in writing, on a piece of paper called affidavit.
Because courts are careful about what can be admitted as evidence, affidavits for motions have specific rules regarding what is allowed and what is not. One must also note that the rules of evidence for trials are not the same as for those for motions.
What ought to be simple steps in litigation often require a great deal of extra effort. Just the simple act of giving notice takes a great deal of time and effort. In addition, each court or tribunal requires their own special format when it comes to an affidavit. At the time of writing, we are undergoing the Covid 19 situation. It is hoped that this will incentivize the courts to adapt technology to increase the efficiency of procedures, including sending documents to the court house and amongst litigants.
For more information on civil litigation in Ontario, watch our videos on our Youtube channel Litigation Help.