Putting Your Best Foot Forward in a Legal Affidavit

Published on 29 August 2022, 07:22:56 AM

You could lose your court case if your affidavit is dysfunctional. Not having a lawyer has tripped up all but the hardiest of affidavit writers. 

1. Do You Swear to Tell the Truth?

When an “affiant” asked Ontario Divisional Court for a judicial review in 2018, the judge tossed her application as frivolous, vexatious and an abuse of process. 

Was the affidavit even sworn (a religious oath) or affirmed by a commissioner of oaths? It had a jurat, a box on the last page for a commissioner to confirm her identity and that she had provided the affidavit for them to witness. But the commissioner’s signature wasn’t legible. The stamp a commissioner would have placed on the affidavit was missing. That just added to the confusion. “…I cannot imagine that any properly qualified Commissioner of Oaths would have sworn the purported affidavit in this form,” the judge wrote.

That was just the start. The complainant alleged two deputy judges and the court registrar had done her wrong. No copy of her official complaint was attached. “The Applicant has not provided the necessary factual background for this Court to even begin to understand the nature of the complaints,” the judge said. Not providing proof that a complaint had even been made was an abuse of the court process. 

Court cases that were attached to support her arguments related to “criminal constitutional offences” and “criminal misconduct”. But how did they apply to her complaint? The court may never know. Her factum, or statement of facts, was “simply unintelligible.” 

The e-affidavit was scandalous, the court ruled, 49 pages of accusations, internet links and difficult-to-follow references to court rules, cases and the law. All in all, it was impossible to respond to it. 

Case dismissed.  

2. Too Late, Too Bad

Judges can be generous if you miss the deadline to file an affidavit. But only if your excuse makes sense. Toronto’s Bayside Rowing Club won the day when a tenant tried to delay an eviction order. The self-represented litigant missed the deadline to appeal a January 2016 eviction order from the Ontario Landlord and Tenant Board. His reasoning didn’t cut it in court.

The tenant already owed the club $25,000 in back rent, plus legal costs, when he was evicted. Appealing the board’s decision resulted in the eviction being stayed. By June 2016, his stalling had cost the club $60,000 in unpaid rent.

The final straw was missing a crucial deadline in his appeal. Heading into court, the tenant argued he had misunderstood that a transcript of evidence from the board’s January hearing was needed for the appeal to proceed. He had ordered the wrong document, he said. The court had made a mistake by allowing the Landlord and Tenant Board to dismiss the appeal because of his “inadvertent” delay in getting the transcript.

The judge disagreed. The explanation was unreasonable and lacked “simple credibility”, the appeal court stated. The tenant may have been self represented, but he knew his way around legal proceedings. He had yet to order the correct transcript and the delaying tactics were merely an attempt to get away without paying rent “for as long as possible.” 

It was unjust, the judge said. Photos that he continued to live rent free proved the club’s case that his tactics were the direct cause of their mounting financial losses.

3. Who Signed This Thing?

A lien against a residential property almost didn’t see the light of day because of an oversight. Did the affiant fail to get his affidavit signed by a commissioner of oaths or was the commissioner at fault? 

When a pair of property owners were served with a lien for unpaid construction services, they asked the court to declare it invalid. The lien included an affidavit of verification. But where was the commissioner of oath’s signature, proving he had witnessed it?

The affiant swore he took it to a commissioner. If it wasn’t signed, it must have been an “inadvertent slip” by the commissioner. The judge was sympathetic, but rules are rules and the commissioner’s jurat (signature box) was central to the affidavit’s success. The judge granted the home owners’ request to overturn the lien and remove it from their property title.

The claimant appealed. The trial judge had concluded that, without the commissioner’s signed jurat, the affidavit was merely a statement of facts. “Without the certification, it is impossible to conclude, when reviewing the face of an affidavit, whether or not it has been sworn.” The jurat showed who had witnessed the affidavit and confirmed they were authorized by a court to do so.

The appeal court was more generous. Slips or errors can be cured by providing evidence an oversight occurred. The affidavit’s contents were what mattered, “not the proof of the swearing” by signing the jurat. 

The lien stayed on the property title. 

Convenient Day or Evening In Person or Virtual Appointments

Axess Law’s Ontario commissioners of oaths e-sign your affidavit by virtual video call to make it perfectly legal. Call ahead to arrange a day or evening appointment by dialing toll-free to 877-522-9377 or in Greater Toronto at 647-479-0118 or using our online booking form. In person appointments with licensed commissioners of oaths are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s commissioner of oath services.

Photo by MonikaP|Pixabay.