“My Client Says!” - The Art of the Affidavit

With a growing emphasis on the need for efficient access to justice, and a looming overhaul to the Civil Rules, which may lead to many more summary proceedings, affidavit drafting is an increasingly crucial instrument in every litigator’s toolbox.

In civil litigation, affidavits are required in a range of contexts, including:

• Motions – from straightforward litigation histories for procedural motions to complex factual evidence for summary judgment;
• Applications – where affidavits supplant oral evidence altogether; and
• Simplified procedure trials – where evidence in chief, for both the parties and any expert witness, is tendered by affidavit, often before live cross-examinations.

The affidavit may be the only opportunity for a judge to hear your client’s side of the story, from your client. This does not mean that you should not help draft the affidavit, that would be a missed opportunity, but the affidavit should not:

• Sound like you: if it reads like its coming straight from a lawyer’s mouth, it loses the persuasive effect of telling an individual party’s story.
• Repeat other materials: too often on motions, affidavits mirror the Notice of Motion to the extent that – rather than providing the facts to justify what the motion seeks – they simply copy the content of the Notice, in a jumble of “supporting”, but uncompelling, statements of fact.
• Contain legal argument: When an affidavit strays into the application of the law to the facts and why a certain decision should be reached, it detracts from the reliability and admissibility of the document. A judge should not have to parse the affidavit for admissible, relevant evidence.

It is important to remember that the decision-maker is looking to the affidavit for the evidence they need to reach the legal conclusion, and provide the relief, you are asking for. There is an inherent benefit to the judge hearing more than one voice from your side when they are making this decision. This occurs when your materials contain both:

1. Your client (the party’s) voice in the affidavit: providing the relevant facts, in the first person, from the individual who experienced them; and
2. Your voice (the advocate’s), in the factum or other materials: organizing and analysing those facts, and making the legal argument.

The following is a checklist to keep top of mind when preparing an affidavit:

• First, remind yourself what this particular affidavit is for and keep it relevant and contained to the issues. If it is for a motion on a narrow issue, think carefully before straying beyond it. Adding information which is irrelevant or unnecessary can provide fodder for a motion to strike or open your client up to unnecessary cross-examination. Similarly, referencing documents which are not needed may require them to be produced to the other side.
• Make sure your client is only attesting to things they can truly say, that they are not speculating, and that what they say can be explained if necessary.
• Put your client’s best foot forward, but be fair. A well-drafted affidavit should incline a reader to take your client’s side. But an affidavit that is too self-serving, does not address bad facts in the record, or reads as defensive or argumentative, can put the reader on guard.
• Bear in mind the applicable rules of evidence, such as admissibility, hearsay, and privilege, taking care not to include or rely upon improper material.
• Above all, make sure your evidence is consistent. Once an affidavit has been drafted, pick through it with a fine-toothed comb against all available evidence.

Credibility is frequently undermined where a party swears an affidavit that conflicts with something they have said under cross-examination, in correspondence, or in evidence at an earlier stage of the proceeding or in another proceeding altogether. For example, family law and civil proceedings often collide, where affidavit evidence from one context is brought into a subsequent proceeding to undermine a party’s shifting version of events.

• Once you are comfortable with the affidavit’s content, take your client through it line by line. Make sure they are in full agreement with the facts, comfortable with the tone, and that the language feels like their own. They may be asked, and should be able to, explain any given part of it without confusion.
• Finally, be familiar with the applicable Rules, such as:
  • 20.02 – Evidence on Summary Judgment motions;
  • 34 – Procedure on oral examinations;
  • 39.01 – Evidence by affidavit on motions and applications, which includes subrules with respect to the differing content permitted on each, full and fair disclosure on motions without notice, and the content of expert affidavits;
  • 39.02 – Cross-examination on affidavits in support of motions and applications;
  • 53.02 – Evidence at trial by affidavit with leave; and
  • 76.09.1 – Expert affidavits under Simplified Procedure.

Affidavit-drafting may not feel like the most glamorous or exciting part of a file, but it can have serious consequences. This is evident in Robinson A.J.’s analysis (see paras. 9-12) in the recent case Village Homes Inc. v. Connelly, 2025 ONSC 5846:

The trial affidavits tendered by both sides were rife with improper hearsay, opinion, and legal argument. They generally failed to meaningfully outline the witnesses’ direct evidence on factual recollections and observations. Instead, they commonly provided nothing more than high-level statements with limited explanation or substantiation, else they deferred to appended documents for information rather than discuss the contents of those documents directly. Notably, the affidavits of the two key witnesses … often read more like a pleading or factum than witness testimony. Considering that credibility of each … was challenged by the other side, respectively, on various issues, the way in which their affidavit evidence was drafted was less than ideal.

In this case, there has been a failure by both parties to adequately address factual disputes through affidavit evidence in chief. Although additional relevant evidence did come out through cross-examination, there remain significant gaps and inconsistencies. That has been factor in my decision, particularly when assessing whether the parties have met their respective evidentiary onuses. [Emphasis added.]

What ultimately resulted in that case was the dismissal of both the claim and counterclaim, as neither side had met the evidentiary burden. While on the extreme end of the spectrum, this is a reminder of the importance of putting in effective affidavit evidence and the risks where that evidence is lacking.

For a more in-depth look at this topic, as well as insights and tips to put your best affidavit-drafting-foot forward, look forward to the TLA’s affidavit-drafting program, coming this fall!