Updated November 2016
This How-To Brief outlines the steps to take when preparing an affidavit for the hearing of a motion or an application.
Note: See R. 76 of the Rules of Civil Procedure for requirements for affidavits in actions under the simplified procedure.
1Gather what you will need
- Rules of Civil Procedure (See the link to the Rules of Civil Procedure in the Statutes and Rules section of this How-To Brief.)
- Applicable Practice Directions and Policies (See the link to the Superior Court of Justice Practice Directions and Policies in the Resources section of this How-To Brief.)
- Rules of Civil Procedure Forms:
(See the link to the Rules of Civil Procedure Forms in the Statutes and Rules section of this How-To Brief.)
- Form 4A, General Heading of Documents – Actions
- Form 4C, Backsheet
- Form 4D, Affidavit
- Courts of Justice Act (See the link to the Courts of Justice Act in the Statutes and Rules
section of this How-To Brief.)
- Firm precedents, if any, and library resources for precedent material
2Determine the purpose of the affidavit
- Determine the purpose for which the affidavit is being sworn, and consult the applicable statute and/or rules for any requirements that may apply.
- Read relevant case law to develop a complete understanding of how the applicable statute and/or rules have been interpreted by the courts. Note any evidence that should be set out in the affidavit to satisfy the applicable legal tests.
3Interview the deponent
- Interview the deponent to obtain an accurate version of the story and to identify any key documents.
- Review any relevant paper as well as electronic documents in the deponent's possession and control, including contracts, receipts, written correspondence, emails, invoices, etc. If the deponent is cross-examined, the examining party may be entitled to production of this material for the purpose of cross-examination.
- Determine the source of the deponent's knowledge of the events in question, noting any points for which the deponent relies on information received from others rather than the deponent's personal knowledge.
- If the deponent is relying on information from others, obtain the identit—ies of the people who provided this information.
- If the deponent is relying on other people's information with respect to important or contentious points, consider obtaining affidavit evidence from these people directly rather than relying on the deponent's information and belief.
- Advise the deponent that the deponent may be cross-examined on any of the statements made in the deponent's affidavit.
4Prepare the draft affidavit
- Use Forms 4A, 4C and 4D.
- An affidavit must be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where the Rules provide otherwise (r. 4.06(2)).
- Subrule 4.06(1) sets out the general requirements for an affidavit to be used in a proceeding. The affidavit must be in Form 4D and
- be expressed in the first person
- state the full name of the deponent and, if the deponent is a party or the solicitor, officer, director or employee of a party, state that fact
- be divided into consecutively numbered paragraphs with each paragraph being confined, as far as possible, to a particular statement of fact
- be signed by the deponent and sworn or affirmed before a person authorized to administer oaths or affirmations
- Consider the use of defined terms, headings, subheadings and a table of contents to organize the affidavit.
- Any exhibit that is referred to in an affidavit must be marked as such by the person commissioning the affidavit (r. 4.06(3)).
- Where the deponent of an affidavit for use on a motion relies on the information of others, the affidavit should specify the source of the information and state that the deponent believes the information to be true (r. 39.01(4)). Note that less weight may be given to affidavit evidence based on information and belief.
- Where the affidavit is being provided in support of an application as opposed to a motion, information and belief should only be relied upon with respect to points that are not contentious (r. 39.01(5)).
- Note that the Rules of Civil Procedure also restrict the use of evidence based on information and belief on certain types of motions, such as a motion for a contempt order (r. 60.11(3)) or a motion for summary judgment (r. 20.02(1)).
- If your motion or application is being made without notice to the adverse party, the deponent is required to make full and fair disclosure of all material facts. Failure to do so is, in itself, sufficient ground for setting aside any order obtained on the motion or application (r. 39.01(6)).
5Review, finalize and commission the affidavit
- Have the deponent review the affidavit to ensure that there are no errors or omissions.
- Make any necessary corrections and have another lawyer, a student-at-law, a law clerk, or your assistant proofread the affidavit.
- Commission the deponent's signature on the affidavit. Commission all exhibits referred to in the affidavit.
- Have sufficient copies made of the sworn affidavit to provide one to each adverse party and one to the deponent. Retain an additional copy for the client's file. The original sworn document will be filed with the court for the hearing of your motion or application.
- Superior Court of Justice Practice Directions and
- Annotated Documents for an Injunction (Toronto: Continuing Legal Education, Law Society of Upper Canada, 2003). Review this publication at your local law library (see AdvoCAT Great Library Catalogue) or download it through the AccessCLE website. The website includes a search function to find other relevant articles from The Law Society of Upper Canada's Continuing Professional Development programs.
- Christopher Wirth, Interlocutory Proceedings (Aurora, ON: Canada Law Book, 2004)
- Keep on Moving: A Guide to Civil Motions (Toronto: Ontario Bar Association, Continuing Legal Education, 2002)
- Avoiding Motion Sickness: Essential Advice for the Civil and Family Litigator (Toronto: Canadian Bar Association, Continuing Legal Education, 1999)
Statutes and Rules