v. Ariss, 2011 ABQB 435 [Ariss], the wife brought
an Application to unfile an Affidavit sworn by her in support of an
Interim Order for child support and spousal support. Subsequently,
the issues regarding support were settled out of Court. Counsel for
the husband consented to an Order removing the Affidavit from the
Justice D. Lee considered when the Court should allow a party to
withdraw a filed Affidavit. The Evidence Act, RSA 2000, c.
A-18 and the Alberta Rules of Court, do not provide
direction regarding the withdrawal of affidavits. However, relevant
case law exists regarding this issue.
In Boehringer Ingelheim (Canada) Ltd. v. Canada (Minister of
National Health, Health Protection Branch), 2003 FCA 151, the
Federal Court of Appeal affirmed that substitution of an affidavit,
which includes a withdrawal, is at the Court's discretion.
Furthermore, the most important consideration is whether there will
be prejudice to the party requesting the withdrawal, if it is not
granted. In this case, the Court upheld the Trial Division
Judge's decision not to allow the withdrawal, due to the fact
that prejudice had not been established.
Gill, 2004 BCSC 518 [Gill], is closely on point
with Ariss. In Gill, both parties filed
inflammatory Affidavits in support of an Application related to
issues involving the parties' children. The parties settled
their issues prior to the Application and subsequently applied to
have the inflammatory Affidavits withdrawn.
The factors that a court should consider in deciding whether to
allow the withdrawal of an affidavit were outlined in Gill
at para. 36:
Was the affidavit filed by mistake?
Has the affidavit been used, in the sense of having been before
the Court, during the course of considering an application?
Is there a pending application before the Court for which a
party has indicated it intends to rely upon the affidavit?
Is the application to withdraw the affidavit made as a
strategic or tactical decision to deny the other party access to
relevant information or the ability to cross-examine the
Would the other party be prejudiced in any way by withdrawal of
Are there policy considerations which would militate against a
withdrawal of the affidavit?
Would the administration of justice be adversely affected by
the withdrawal of the affidavit?
The most influential of these factors include whether the reason
for the withdrawal is to prevent cross-examination of a witness,
whether the withdrawal is strategic and whether the withdrawal
would cause prejudice to the opposing party. Policy reasons against
allowing an affidavit to be withdrawn are also important.
Generally, documents should not be removed from a court file
because it is a public record. In this case, Master J. Brine
permitted the withdrawal of the parties' Affidavits because
they had not been before the Court, the relevant Application was no
longer pending, the withdrawal request was not made for strategic
reasons and there would be no prejudice caused to either party by
the withdrawal. Finally, Master Brine noted that if the Affidavits
remained on the court file, this could impede the parties'
In Ariss, the Affidavit had not been before the Court
because the Application did not proceed. There was no intention to
withdraw the Affidavit for strategic reasons or to prevent the
opposing party from cross-examining the deponent. Neither party
would be prejudiced by a withdrawal of the Affidavit. Ultimately,
Justice Lee allowed the withdrawal of the Affidavit. However, he
also stated that these types of applications are serious matters
and it can be inferred that such applications should not be brought
Although it is possible to bring a successful application to
have an inflammatory affidavit withdrawn, parties should reflect
seriously before filing such affidavits.
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