Affidavits in support of motions and applications are not permitted to contain legal argument and opinions (except in rare cases where a legal opinion may be relevant to the hearing, such as proving foreign law), nor can they contain comments on the legal position of the opposite party.
Rule 4.06(2) of the Rules of Civil Procedure requires an affidavit to 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.
If an affidavit contains particularly offensive content, a party may wish to seek to strike the offending paragraphs. On the other hand, some contents of an affidavit, although inappropriate, may have no or very little bearing on the outcome of the hearing, such that it is not worthwhile to bring a motion to strike. The question to be asked is: does the impugned evidence matter?
For example, in affidavits, we often see a statement from counsel to the effect of: “I verily believe that it is appropriate for the court to grant the order sought”. This is unnecessary and improper. Counsel’s opinion on the merits of a motion or application has no place in an affidavit.
In a similar vein, we sometimes see a statement such as: “I verily believe that the plaintiff will be significantly prejudiced if the relief sought is not granted”. This is also unnecessary and improper. What is relevant is the evidence in support of prejudice.
However, in our view, there is no need to bring a motion to strike these statements because the court will simply disregard them and will sometimes rebuke counsel.
When counsel determine that a motion to strike is required, they need to consider the timing of when to bring the motion. Justice Charney examined this issue in Hunt v. Stassen, 2019 ONSC 4466.
Where a motion to strike is based on the relevance of the affidavit evidence, it is usually preferable to leave the question of admissibility to the court hearing the motion or application on its merits because relevance can often only be assessed in the context of the motion or application as a whole.
However, there are other instances where it is preferable to bring a pre-emptive motion to strike because it can result in a more efficient use of the parties’ and court’s time and resources.
Justice Charney stated that permitting inadmissible argument, opinions or comments to remain in an affidavit presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs of the affidavit, none of which is ideal.
A pre-emptive motion to strike the offending paragraphs may be preferable in these circumstances. This approach permits the parties to define the appropriate record for the court. It also allows the parties to focus on the relevant issues, not collateral ones, in cross-examinations and in preparing factums.
The amount of inadmissible evidence in an affidavit is also a factor to consider in determining when to bring a motion to strike.
Justice Charney stated that, if only one or two isolated paragraphs in an affidavit contain inadmissible evidence, it may be more efficient to have the issue of admissibility determined by the court hearing the case on its merits.
However, if the affidavit is replete with inadmissible paragraphs, it may be fairer and more efficient to have the question of admissibility determined in advance.