April 24, 2023

In estate litigation, affidavits are a common and crucial source of evidence. On occasion, one party may take issue with an opposing party’s affidavit evidence. When this happens, the usual course of action is to challenge the admissibility of the affidavit evidence at trial or during the main hearing. However, in some circumstances, it may be more appropriate to bring a motion ahead of trial/the main hearing to have the affidavit struck, either in whole or in part. Rule 25.11 of the Rules of Civil Procedure governs the striking of affidavits.

Rule 25.11 reads:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, (a)  may prejudice or delay the fair trial of the action; (b)  is scandalous, frivolous or vexatious; or (c)  is an abuse of the process of the court.

The reference to “other document” in Rule 25.11 has been interpreted by courts as applying to affidavits.

The court’s power to strike out an affidavit is discretionary, and should be exercised only where it will save time for another judge later on, who would otherwise have to hear and decide evidentiary issues that are extraneous to the real issues between the parties. In theory, this should lower the cost of litigation.

Given the purpose of Rule 25.11 motions, it is no surprise that the judicial preference is to avoid hearing pre-emptive motions to strike affidavits. In “the overwhelming majority of cases,” it is unnecessary and unproductive to bring a pre-emptive motion to strike an affidavit, as the admission of affidavit evidence can be effectively and properly addressed by the judge (or associate judge) at the main hearing or trial.  In some cases, efficacy or fairness may require that disputes about the factual record be determined before the main hearing, but these cases are far and few between.

The threshold for bringing a motion to challenge affidavit evidence on a civil motion or application is exceedingly high: the motion may be brought in only the “rarest and most extraordinary of cases.” The purpose of the motion is to address any affidavit evidence that can be said to prejudice or delay a fair hearing; is scandalous, vexatious or frivolous; or is an abuse of process. Any affidavit evidence of questionable admissibility that does not rise to these levels “has no place in a pre-emptive motion under Rule 25.11.”

Given the high threshold mentioned above, it is unlikely that minor technical breaches of the Rules will justify a pre-emptive motion to strike an affidavit. For example, where the affidavit deals with non-contentious matters, the affiant’s failure to identify the source of their information will not justify striking the affidavit where it is possible to glean the source of that information from the attached exhibits and overall circumstances. In addition, if the sole basis for attacking the affidavit evidence is its relevance, that will probably not justify a pre-emptive motion to strike; the issue of relevance is better heard by the judge during the main hearing/trial.

When will an affidavit be struck?

Keeping in mind the high threshold for succeeding on a pre-emptive motion to strike an affidavit, the following are some reasons why an affidavit could be struck, either in whole or in part:

– The affidavit contains improper opinion evidence (i.e., does not comply with the legal tests for the admissibility of “opinion evidence”);

– The affidavit contains improper hearsay evidence (i.e., the affidavit does not specify the source of its information, and the source cannot be gleaned from exhibits or circumstances);

– The affidavit evidence is designed to impugn the character of another party or a fundamental witness (i.e., the affidavit does not comply with the legal tests for the admissibility of “character evidence”);

– The affidavit contains legal and factual arguments/submissions, which belong in a factum, not an affidavit;

– The affidavit contains inflammatory rhetoric, or offensive allegations made for the purpose of prejudicing another party;

– The affidavit contains evidence that touches on matters raised during mediation (i.e., runs afoul of the general rule relating to settlement privilege, which states that things said during mediation cannot be used against the speaker later on in court); or

– The affidavit would inevitably give rise to extraordinary costs or difficulty for the other party.