How this Rule Works

As with Rule 38 – Pleading, Rule 39 - Affidavit incorporates current best practices for drafting affidavits, including those discussed in Waverley (Village Commissioners) et.al. v. Nova Scotia (Minister of Municipal Affairs) (1993), 123 N.S.R. (2d) 46 (S.C.).

Rule 39.02 specifies that affidavits must contain only admissible evidence.

Rule 39.04 deals with striking affidavits containing inadmissible evidence, granting discretion to the judge in some cases and requiring the judge to strike the offending material in others. (The distinction between “information that is not admissible evidence” that may be struck, and “a statement that is not admissible” which must be struck, is not entirely clear.) There is no saving provision for non-compliant affidavits, as with the previous R.38.12, except for the general discretion of the court set out in R.2. Note that R.2.03(3) now significantly limits the exercise of judicial discretion to avoid mandatory provisions in the Rules.

The special Rules related to taking of affidavits from deponents who are blind, do not read, or do not read English, remain, with some modifications – see R.39.10. Affidavits in French are not specifically mentioned.

Rule 39.10(5) dealing with handwritten alterations to affidavits is unchanged – the deponent makes any necessary corrections, and the correction is initialed by the person taking the affidavit.

Cross-examination on affidavits is now dealt with in R.53.03 and R.53.05 for applications, and R.23.09 for motions.

Highlights of Changes

Form of Affidavits – Rule 39.08(2)(c) discourages lengthy paragraphs in affidavits by requiring each sentence to be set out in a separate paragraph.

Rule 39.08 and Form 39.08 also make a number of minor changes to the form of affidavits:

• “make oath and say” is now “make oath/affirm and give evidence as follows”;
• the requirement to state the deponent’s place of residence and occupation has been deleted;
• the first paragraph of an affidavit, which previously identified the deponent and his or her relationship to the proceeding, along with a statement of “personal knowledge of the matters deposed to except where stated to be based on information and belief” has now been expanded into three separate paragraphs;
• Rule 39.08(4) requires that pages be numbered in longer exhibits, and that affidavits with ten or more exhibits include a table of contents and separate tabs for each exhibit;
• Under R.39.09, exhibits must now be edited to remove unnecessary personal information. Rule 39.03 sets out several appropriate methods for editing exhibits and extends the right to inspect the unedited exhibit;
• Exhibit stamps must include the registry number (Form 39.09 also includes the year the proceeding was commenced) and the usual information included with each exhibit, but do not need to include the place that the affidavit was sworn. Some existing exhibit stamps may not comply with R.39.09;
• Form 39.08 makes a slight change in the form of the jurat, but all of the usual requirements remain;

The court has offered a compliant form of affidavit in Form 39.08. Compliance with the Rules is required but compliance with the forms is discretionary under R.95.03.

Scandalous Affidavits - Rule 39.05 provides that scandalous or oppressive affidavits are now dealt with in Rule 88 – Abuse of Process. Rule 88 provides for a broad-cross section of remedies, including indemnification of losses, expunging an affidavit, or ordering that it be sealed.

Subsequent use of Affidavits – The previous R.38.14 provided for use of affidavits in another application in a proceeding. Rule 39.06 continues this practice, provided that proper notice is given. It also permits an affidavit to be used for other purposes in the proceeding, if a judge permits. Rule 39.07 expressly extends the use of affidavits to other proceedings to impeach, or to prove a fact (provided that any hearsay is admissible). Rules 51.07(g) and (h) govern the use of affidavits at trial, limiting their use to situations where the court permits, and the affiant is available for cross-examination, or where the evidence cannot reasonably be contested. Counsel seeking to utilize prior affidavits at trial must also give notice of this intention prior to the finish date (R.51.02(2)).

Practice Tip

Counsel who draft affidavits with careful adherence to the principles in Waverley will need to make only minor alterations to their current drafting practices to comply with R.39.