This recent case from the Ontario Court of Appeal poignantly highlights the importance of taking the time to prepare good quality Affidavits to be used in support of a party’s position. In this case, it was a motion seeking to add a party after the limitation period expired, which was lost entirely because the moving party failed to file a proper Affidavit.
The case involved a motion to add a claim against a lawyer more than two (2) years after the events in question, which was initially denied by the motion’s judge, and now before the appellate court for review.
The moving party had the evidentiary burden to displace the statutory presumption, contained in subsection 5(2) of the Limitations Act, S.O. 2002, c.24, that a claim is deemed to be discovered “on the day the act or omission on which the claim is based took place, unless the contrary is proved.” In this instance, the moving party had to convince the presiding judge that their client only discovered that they had a claim against the lawyer much later, and why this claim could not have been discovered any earlier.
Regrettably, the supporting Affidavit submitted by the moving party’s principal contained none of this detail. An Amended Claim was affixed to the supporting Affidavit, and that Amended Claim contained some pleas pertaining to the limitation period issues, but the Affidavit itself was silent about the limitation period issues. The appellate court said the following about the lack of a evidence to support the motion:
[3] ….. There were no material contested facts. ….. It was insufficient to simply attach the proposed amended pleading to an affidavit of the appellant’s principal. The paragraphs in the proposed amended pleading about when the claims were discovered were not evidence, nor did the affiant attest to the truth of those allegations. Further, the affidavit was silent on when the claim was discovered or why it could not have been discovered earlier.
….
[5] Accordingly, ….. the statutory presumption was not rebutted.”
This is not to say that this motion would have been successful if a proper and fulsome Affidavit was filed, however, it is far better to lose on the merits than to lose because of sloppiness.
Unfortunately, day-in-and-day-out I see many Affidavits that are inadequate while sitting as a Deputy Judge. The most common error being an Affidavit filed from a clerk or lawyer, when they are attesting to critical facts that are clearly beyond their own personal knowledge: these Affidavits should be made in the name of the client, or an individual with personal knowledge of the key documents and facts. Often these motions are outright rejected as a result.
Although a judge is permitted to rely on an Affidavit from a lawyer or law clerk in the right circumstances, this typically only happens when the judge is satisfied that the first-hand knowledge of the clerk or the lawyer is germane, or the Affidavit simply adduces non-contentious evidence such as correspondence between counsel (Ferreira v. Cardenas, 2014 ONSC 7119 (CanLII)). An Affidavit by a lawyer or clerk should not be allowed if it contains legal opinion or evidence regarding contentious issues of which the affiant has no personal knowledge (Mapletoft v. Christopher J. Service, 2008 CanLII 6935 (ON SC)).
C & C Nestco Corporation v. Starr, 2025 ONCA 792 (CanLII)
https://www.canlii.org/en/on/onca/doc/2025/2025onca792/2025onca792.html