Canada: Write It Down: Revisiting The Rules Of Affidavit Evidence

As a litigant, it may seem imperative that every possible document, conversation and e-mail related to your matter is presented before the Court. However, a court's decision ultimately turns on evidence that is necessary and reliable to prove an issue, not the sheer volume of evidence compiled. Judicial decision-making requires evidence, but litigants must adhere to the rules of civil evidence to ensure that the evidence provided will be considered by the Court.

The recent Alberta decision ANC Timber Ltd. v Alberta (Minister of Agriculture and Forestry) ("ANC Timber") revisits the basic principles of civil evidence and discusses how these principles apply to a party tendering evidence by affidavit. The Minister of Agriculture and Forestry sought an Order pursuant to Rule 3.68 of the Alberta Rules of Court to strike out portions of ANC Timber Ltd.'s affidavits due to the inclusion of inadmissible evidence.

The Fundamental Rules of Evidence Apply to Affidavits

The purpose of an affidavit is to bring a litigant's admissible evidence before the court. Topolniski J. prefaced her decision in ANC Timber by stating, to be admissible, evidence must be both reliable and necessary to prove a fact in the litigation. Further, even admissible evidence may still be excluded if its prejudicial effect outweighs its probative value. Prejudice is not narrowly defined and can include:

  • Evidence that potentially undermines an accurate result, or complicates, frustrates, or degrades the process; and
  • Adverse practical consequences such as the undue consumption of time, unfair surprise, the creation of distracting side issues, and a potential to confuse the trier of fact.

Topolniski J. assessed the evidence in the witness' filed affidavit and categorised its admissibility on four different evidentiary rules: argument and/or conclusion, relevance, hearsay, and opinion evidence. Ultimately, several portions of ANC Timber Ltd.'s witness' affidavit were struck out on the basis of being inadmissible, both by the Court's decision and by ANC Timber Ltd.'s concessions.

Application of Rules to Affidavit Evidence

1. Argumentative and/or conclusory evidence is impermissible

Simply: an affidavit is written evidence used to state facts, not to provide argument or conclusions. The inclusion of arguments and/or conclusions is a common fallacy of affidavit evidence, and is inadmissible.

2. Irrelevant evidence is impermissible

Topolniski J. cited the Supreme Court of Canada's definition of relevance stating, the evidence "must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence". In sum, the evidence must relate to a material issue before the Court. In ANC Timber, the issue before the Court was whether an interim stay or injunction should be granted. Therefore, for evidence to qualify as relevant, it needed to relate to the test for interim relief.

3. Hearsay Evidence

Affidavits must be sworn on the basis of personal information with one exception provided by the Alberta Rule of Court. Rule 13.18 of the Alberta Rules of Court allows hearsay evidence on a motion for interim relief if the evidence is accompanied by the source of the evidence and the party's belief in the evidence's truth. Still, a court is not mandated to hold such evidence admissible. Even with this exception, hearsay evidence may be excluded if its probative value is outweighed by its prejudicial effect, or if the Court determines the evidence inadmissible for other reasons.

The seriousness of the case, the importance of the evidence, the consequences to the parties, and costs or efforts to secure the original evidence are all considered in determining the admissibility of the hearsay evidence. Topolniski J. acknowledged that all of these considerations of hearsay evidence result in the Court being granted broad discretion, which may ultimately result in conflicting judicial decisions on the same piece of evidence.

4. Opinion Evidence

Opinion evidence is presumptively inadmissible. One exception to this presumption is expert opinion evidence on issues that require specialised knowledge. The Alberta Court of Appeal in Kon Construction Ltd. v Terranova Developments Ltd defined three categories of 'witnesses of expertise', who may provide admissible expert opinion:

  1. Independent experts retained to provide opinions about issues in the litigation, but not otherwise involved in the underlying events;
  2. Witnesses with expertise who were involved in the events underlying the litigation, but are not themselves litigants; and
  3. Litigants who have expertise, and who were actually involved in the events underlying the litigation.

Rule 6.11 of the Alberta Rules of Court allows expert opinion evidence in affidavits for interim motions, however Topolniski J. concluded "the regime for admitting expert evidence should parallel that for trial". Thus, if admitting expert opinion evidence by way of affidavit, the Court requires the expert's qualifications, the information and assumptions on which the opinion is based, and a summary of the expert opinion.

Once provided this information, the Court must assess the expert evidence to determine its admissibility. First, it must consider whether the evidence meets the following four criteria: relevance; necessity; absence of an exclusionary rule; and special expertise. Second, the benefits of admitting the expert opinion evidence must outweigh the potential risks. If the evidence does not satisfy both components, the opinion evidence will be inadmissible and struck from the affidavit.

Finally, opinions that qualify as 'ordinary observations' are admissible through a lay witness.

Conclusion

Alberta courts have acknowledged that affidavits are often filled with impermissible evidence. Rule 3.68 of the Alberta Rules of Court enables a litigant to have impermissible evidence struck from an affidavit. While Topolniski J. acknowledges that a motion under Rule 3.68 may be costly and time-consuming, upholding the rules of civil evidence and acting as gatekeeper is an essential role of the Court. ANC Timber provides a helpful guide in assessing your own or an opposing party's affidavit evidence, and determining what evidence a court may deem inadmissible.

On a daily basis, the commercial litigation group at McLennan Ross LLP assists clients with the gathering, assessing, presentation and challenging of evidence in a wide variety of disputes. Any member of our group would be pleased to answer questions you might have about the use and value of information being considered in a present dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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