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Making Your Affidavit Stand Up in Court

Have you been harmed on purpose? A lawyer who said he was lost his case. It’s good to know nobody’s perfect when it comes to making an affidavit for Ontario Superior Court of Justice. 

How to Write an Affidavit for Court

It looks so easy on TV. The fact is, making an affidavit takes work. You need to write out your facts, offer evidence and have your affidavit witnessed and sealed by an Ontario notary public. You swear or affirm (which means declare) the facts in it are true to the best of your knowledge. 

How to Fill Out an Affidavit

Besides the basic information on the affidavit form, like your name, address and what court and regional municipality the case is being heard in, an affidavit is:

  • a sworn or affirmed statement of facts
  • organized in numbered paragraphs
  • with a single fact each (use as many as you need)
  • and supporting documents attached.

Numbering the paragraphs and labelling each exhibit from A to Z makes it easier for the judge and others to follow. 

A Case of Wronged Parties

Like too much caffeine, affidavits used in court have real consequences. A retired lawyer who made allegations of criminal behaviour, bribery, dishonesty and misconduct wound up owing $12,500 to parties he had wronged. His adversaries swore false affidavits or so he claimed.

What Really Happened in Court

The plaintiff filed his affidavit after his relationship with his own lawyer broke down in May 2018. Here’s what really happened in court. The plaintiffs’ lawyer spoke to the defendants at a pretrial hearing. It was innocent enough, but the plaintiff became convinced they had somehow caused his lawyer to withdraw from his case. So he filed a court motion to that effect. In reality, his lawyer had told the plaintiff he planned to leave the case months earlier.

Misconduct Allegations Tossed

Guessing what was said at the pretrial was one thing. But the allegations of misconduct were serious. The judge concluded there was no evidence of improper conduct by the defendants. The plaintiff had merely decided on his own that they had encouraged his lawyer to quit.

Defending a Complex Motion   

The plaintiff asked for $105,000 in court costs, the defendants $16,240. The plaintiff had repeated his allegations throughout two lengthy court affidavits. The defendants had spent many hours responding to the affidavits and the plaintiff’s requests to be compensated for losing his lawyer.  The judge called the plaintiff’s motion “complex” — it took three hours of court time. 

Unsubstantiated Allegations Increase Court Award

But the plaintiff had no evidence. Was he lying? Not according to the court. The judge awarded “substantial indemnity costs.” It was a special award given when a party can’t prove allegations of fraud, criminal conduct, dishonesty or “other reprehensible conduct.” Being a lawyer didn’t help the plaintiff’s case. He knew the allegations were grave, the judge said.

Proving Harm Was Intended in an Affidavit

To win his case, the plaintiff had to prove the defendants talked his lawyer into resigning. The fact his lawyer withdrew could have been an accidental result of the conversation at the pretrial hearing. But even that argument failed. The lawyer the plaintiff he was quitting in June. The pretrial hearing was in September. The plaintiff had no evidence the harm he suffered (losing his lawyer) was intentional.

Are Your Facts Material?

The plaintiff’s facts in his affidavit had to support his allegations. He hadn’t been part of the conversation. He couldn’t really say what the defendants had discussed. His evidence wasn’t “material” — the judge had nothing to go on from his affidavit. Had he been harmed on purpose by the defendants? Was he likely to be harmed by the defendants’ conversation with his lawyer? Not that the judge could see.

What to do About a Misleading Affidavit

The affiant leveled accusations he couldn’t prove. What do you do when the affiant lies outright? If the plaintiff lies about significant facts:

  • You can explain it to the judge or go to police. 
  • If police turn you down, try an Ontario justice of the peace (JP). JPs review information to decide if a court summons or arrest are warranted.
  • As a final option, you can start a private prosecution. Basically, it’s a court hearing to convince a judge you have enough evidence for police to lay charges.

Putting Your Best Foot Forward

Naturally you want to put your best foot forward. Getting legal advice before you write an affidavit always helps. Moral of the story: tread lightly, even if you are a lawyer.

Find Remote Notary Services in Ontario

Notarize an affidavit without leaving home with Axess Law’s Ontario virtual notary service. Our video conferencing services let you speak with a remote notary public at times convenient for you.  Ontario notary publics are available 7 days a week, day or evening, by calling 877-522-9377 (647-479-0118 in Greater Toronto) or using our online booking form. Notaries meet with you in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s notary public services.

Photo by Edward Lich|Pixabay.

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