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Swearing or Affirming an Affidavit Requires the Person Doing So to Actually Know of the Stated Details
Question: Can a person sign an affidavit just because a lawyer advises it?
Answer: Swearing or affirming an affidavit demands genuine knowledge or belief in the truth of its contents. According to the Ontario Court of Appeal in Teefy Developments v. Sun, 2021 ONCA 870, an affidavit must reflect the deponent's true belief and understanding, rather than merely being a formality directed by legal representatives. Misrepresenting facts under oath could lead to severe legal consequences, including perjury as defined by the Criminal Code, R.S.C. 1985, c. C-46. Seeking the proper legal guidance ensures adherence to legal procedures. Consider reaching out to services such as Byfield Legal Services to align with legal expectations.
Is It Improper For a Person to Swear the Truth of An Affidavit By Just Signing Where a Lawyer or Paralegal Says to Sign?
The Oath to Swear or Affirm Facts Within An Affidavit Is a Very Serious Matter Whereas a Person May Be Criminally Charged For Swearing or Affirming An Affidavit Within Genuine Knowledge of the Stated Facts.
Understanding That Swearing or Affirming an Affidavit Requires Actual Knowledge or Belief For What Is Stated
When a person swears or affirms that the facts as stated within an Affidavit are true, the person must do so with actual knowledge or belief that the stated facts are indeed true. Swearing or affirming that stated facts are true, without actual knowledge, or a genuine basis for belief, that the stated facts are indeed true is highly improper and may even constitute as a criminal offence.
The Law
In the recent court case of Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870, the Court of Appeal addressed the serious concern regarding an Affidavit that was prepared by a legal representative and then provided to a person to make Oath and swear or affirm that the Affidavit contents were true despite the person being unable to read the Affidavit and therefore being unaware of what information was stated as truthful. Upon reviewing the suggestion that it is notoriously understood and common that a legal representative, such as a lawyer or paralegal, will draft an Affidavit containing statements that a person should state and then the lawyer or paralegal will provide the Affidavit to a person to swear or affirm under Oath that the statements are true, the Court of Appeal said:
[9] I pause, at this point, to reflect on a rather disturbing issue regarding the moving party’s affidavit filed on this motion. Her counsel advises that the moving party does not read English. When I inquired how she could have then sworn her affidavit in these proceedings, I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign.
[10] It should go without saying that that is not the way that any affidavit is properly prepared. The deponent of an affidavit is required to review its contents and swear or affirm to its truth. It is the obligation of the person commissioning the affidavit to ensure, among other things, that he or she administers the oath or declaration in the manner required by law before signing the jurat or declaration: Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not understand English, then the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact.
As per the Court of Appeal, and contrary to what was purported as common knowledge, an Affidavit must be prepared with the input of the person who will swear or affirm that the Affidavit is true. It is highly inappropriate for a lawyer or paralegal to put words into the mouth, or onto an Affidavit, of a person who will be taking an Oath and confirming that the words are true unless the person actually knows, or verily believes, that the words are indeed true.
“... I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign”
~ Nordheimer J.A.
Teefy Developments v. Sun, 2021 ONCA 870
Despite the admonishment from the Court of Appeal in Teefy Developments as provided above, the problem of improper hearsay continues. Addressing the same point are the cases of China Yantai Friction Co. Ltd. v. Novalex Inc., 2023 ONSC 3424, and Haventree Bank v. Lording, 2023 ONSC 1077, wherein each it was said:
[13] Rule 4.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that, except as otherwise provided in the Rules of Civil Procedure, an affidavit be confined to statements of fact within the personal knowledge of the affiant or to other evidence that the affiant could give if testifying as a witness in court.
[14] Rule 39.01(5) of the Rules of Civil Procedure allows for affidavits for use on applications to contain statements of the affiant’s information and belief respecting non-contentious facts, provided that both the source of that information and the fact of the affiant’s belief in the veracity of that information is specified in the affidavit.
[15] The permissiveness of rule 39.01(5) “does not offer parties and counsel a license for sloppiness, laxity or the admission of double or triple hearsay” (see: Haventree Bank v. Lording, 2023 ONSC 1077, at para. 6).
[16] The failure to comply with the basic requirements of specifying the source of the affiant’s information and stating the affiant’s belief in the veracity of that information requires that the offending evidence be struck (see: Flight (Re), 2022 ONCA 77, at para. 13).
[4] Many litigants and counsel believe that evidentiary rules in written motions are so lax that virtually anything goes. That is not the case. The presumptive rule regarding affidavits, limiting evidence to facts that an affiant could testify to at trial, is set in Rule 4.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, which states:
(2) An affidavit shall 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 these rules provide otherwise.
[5] Rule 39.01(4) sets out a limited exception to that rule for affidavits in a motion. It allows hearsay in such affidavits if certain conditions are met. It states:
(4) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[6] The permissiveness of this subrule does not offer parties and counsel alicence for sloppiness, laxity or the admission of double or triple hearsay, as the Bank attempts to do here.
[7] In Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, Perell J. wrote at para. 27:
… the Rules of Civil Procedure permit hearsay evidence for motions. An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit. A statement in an affidavit that: (a) does not state the source of the affiant's information; or (b) contains inadmissible hearsay, legal and factual argument belonging in the factum, inflammatory rhetoric, or offensive allegations made for the purposes of prejudicing another party may be struck out in whole or in part.
If a person is providing live voice testimony as a witness, or provides witness testimony via statements sworn or affirmed as truthful within an Affidavit document, despite that the person is without actual knowledge or belief of the expressed facts and is instead merely stating what the person was told to say or state, such a person may be committing a criminal act per the Criminal Code of Canada, R.S.C. 1985, c. C-46, whereas it is stated:
Perjury
131 (1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.
Fabricating evidence
137 Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Summary Comment
The deponent or affiant, being the person who swears or affirms that the facts stated within an Affidavit are true, must hold first hand knowledge or a genuine basis for believing that the facts as stated or indeed true. The person who takes Oath and swears or affirms that the facts within an Affidavit are true must do so without doing so just because the person was told to do so by a lawyer or paralegal, or another person.
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