Drafting An Affidavit Requires Factually Based Statements Rather Than Opinion Based Conjecture
Page last modified: February 10 2023
Can An Affidavit Be Struck From Review By a Judge If the Affidavit Contains Personal Thoughts or Viewpoints and Opinions?
It Is Highly Improper For An Affidavit to Include Thoughts or Opinions, Among Other Views, Unless the Affidavit Is Provided By An Expert Witness Whose Opinions Speak to Factual Details. An Affidavit Containing Improper Opinions May Be Struck By the Court.
Understanding the Proper Drafting of An Affidavit Including Using Factual Statements Only Versus Opinion Viewpoints
A legal action begins with a commencing document. In the Small Claims Court, the commencing document that starts a lawsuit is called the Plaintiff’s Claim. In the higher
also known as the deponent who is swearing or affirming to the truth of statements within the Affidavit, stating an interpretation of what happened is irrelevant and improper as it is for the court to interpret what happened.
The Law
State Only Facts
An Affidavit should contain only factual information relating to the who, what, where, and when of things that the deponent heard or saw firsthand without details added merely for colour such as deponents subjective viewpoints or interpretations, especially where such viewpoints or interpretations are self-serving. The requirement to provide factual details only, and avoidance of colourful viewpoints, was explained in the case of Creber v. Franklin, [1993] B.C.J. 890 (S.C.) where it was said:
… affidavits should state the facts only, without stooping to add the deponent’s descriptive opinion of those facts … For counsel to permit affidavits to be larded with adjectives expressing an opinion about the conduct of the other side contributes nothing to the fact finding process. On the contrary, it does a disservice. It exacerbates existing ill feeling, it pads the file with unnecessary material and it wastes the court’s time.
… Self serving protestations of surprise, shock, disgust or other emotions claimed by a deponent are a waste of time and counsel would do well to remember that …
… The court is not concerned to know whether he was “shocked” or otherwise offended by what the other did, unless that is made relevant by some condition induced in him which explains some act attributed against him. It is the court’s opinion of a party’s actions that is important. Self-serving protestations of surprise, shock, disgust or other emotions claimed by a deponent are a waste of time and counsel would do well to remember that. It is even more objectionable when a deponent is permitted by counsel to swear what a third person’s feelings were as the result of what the opposite party did, or swear to what a third person has or has not experienced in his or her lifetime. If that is relevant at all, and it can rarely be so, then that third person should depose to it directly and give the factual foundation upon which he or she relies. If it is to be tendered by hearsay … then the source of the information and a belief in it must be deposed to.
… Self serving protestations of surprise, shock, disgust or other emotions claimed by a deponent are a waste of time and counsel would do well to remember that …
… The court is not concerned to know whether he was “shocked” or otherwise offended by what the other did, unless that is made relevant by some condition induced in him which explains some act attributed against him. It is the court’s opinion of a party’s actions that is important. Self-serving protestations of surprise, shock, disgust or other emotions claimed by a deponent are a waste of time and counsel would do well to remember that. It is even more objectionable when a deponent is permitted by counsel to swear what a third person’s feelings were as the result of what the opposite party did, or swear to what a third person has or has not experienced in his or her lifetime. If that is relevant at all, and it can rarely be so, then that third person should depose to it directly and give the factual foundation upon which he or she relies. If it is to be tendered by hearsay … then the source of the information and a belief in it must be deposed to.
This rule requiring that an Affidavit contain statements of only what the deponent saw or heard or was told or did, while omitting argument and opinion as well as to refrain from drawing subjective inferences from the who, what, when, and where was also stated within William et al v. British Columbia et al, 2004 BCSC 1374:
[16] Affidavits are limited to what the witness saw, what he or she heard or was told, or what she or he did. They should not contain argument. They should not draw inferences from the stated facts, for that is the duty of the court after all of the evidence has been heard. In the final analysis, all of the evidence must be carefully weighed in the process of finding facts that will be at the foundation of the court’s judgment.
Refrain From Stating An Opinion Unless Expert Opinion
As above, an Affidavit should contain factual information only without opinions or personal viewpoints or feelings as emotional reactions; however, expressing opinions within an Affidavit is permissible, and appropriate, when the deponent is providing an opinion in the context of an expert witness per Home Equity Development Inc. v. Crow, 2002 BCSC 546 where it is stated:
30 Opinion evidence is inadmissible unless given by an expert witness. Personal opinions or a description of the deponent’s or another person’s reaction to events is inappropriate and is nothing more than argument in the guise of evidence. It should not be admitted, and those portions of the affidavits containing opinion and reaction will be struck …
The requirement to refrain from providing an opinion unless an Affidavit is being tendered by an expert witness also includes the requirement to refrain from including argument upon the issues relating to the legal proceedings whereas such argument should be properly contained within the submissions intended to persuade the Judge, who holds the responsibility of reviewing the fact based evidence, including factual statements within Affidavit documents received as evidence; and accordingly, an Affidavit should omit legal argument. Disguising legal argument within an Affidavit was deemed improper per Chamberlain v. School District #36 (Surrey), 1998 CanLII 6723 where it was said:
[28] In general, opinion evidence is not admissible except when authored by an expert witness. Nor is it proper to submit argument in the guise of evidence. Personal opinions or a deponent’s reactions to events generally should not be included in affidavits; argument on issues from deponents serves only to increase the depth of the court file and to confuse the fact finding exercise. To the extent that objection is taken to inclusion of argument or opinion from persons not qualified as expert, the objection is valid and those portions of affidavits have been disregarded.
Avoiding Ultimate Decision Opinions
In a legal case, it is the Judge who holds the duty to form an ultimate decision about the issues involved; and accordingly, a deponent who provides an Affidavit should avoid expressions of opinion that address the issue before the court such as personal views as to whether another person acted improperly as such a determination should be left to the Court to decide; and accordingly, the deponent of an Affidavit should
contribute only factual information that assists the Judge rather than suggesting what should be the decision of the Judge; Bankruptcies of Down, Street and Barnes, 2000 BCCA 218:
[8] Mr. Andrews argues that all three affidavits are objectionable for many reasons. I do not intend to review his arguments and the arguments of Mr. Fulton in response with respect to each paragraph of each affidavit. I am persuaded that there is much in each of the affidavits that is objectionable either because of the assumption that Mr. Down is guilty of “fraud” and the co-petitioners are his “victims”; because much of the information in the affidavits is argument or is barely relevant to the questions raised in the appeal and prejudicial or inflammatory; and because of the use of double and triple hearsay. In a case such as this, where “abuse of process” and the rationale behind the rules relating to champerty and maintenance is in issue, these deficiencies must concern the Court.
Examples
The following sample statements are provided to help illustrate what are inappropriate personal thoughts, viewpoints, and opinions, within an Affidavit document:
Proper Statements
- 1. On July 1st, 2021, I observed the driving of John Smith.
- 2. John Smith was driving along highway 401 in Toronto.
- 3. John Smith was driving at approximately 120 kilometers per hour.
- 4. John Smith changed lanes six (6) times within the stretch of highway between Yonge Street and Avenue Road.
- 5. During the final lane change, John Smith collided with the automobile driven by Sally Brown..
Improper Statements
- 1. On July 1st, 2021, some of my friends saw John Smith speeding and driving erratically..
- 2. John Smith caused an accident that injured Sally Brown.
- 3. John Smith is a bad driver and should be found guilty of careless driving.
- 4. John Smith should also be found liable and be forced to pay for causing the injuries to Sally Brown.
- 5. Also, when John Smith was ten (10) years-old, John took an extra cookie after being told to only have one.
Summary Comment
An Affidavit is an evidentiary document and should contain only factual details absent of the personal thoughts, the viewpoints, or the opinions, of the person swearing the Affidavit. The only exception that allows for opinion within an Affidavit involves opinion when expressed by an independent expert witness whose opinion is relevant to an issue of fact; and accordingly, even an expert witness is required to refrain from expressing views about that speak to the legal issues within the case.