AFFIDAVIT OF DOCUMENTS
Preparing for trial begins as soon as your statement of claim has been filed in Court, if not earlier, and key to victory at trial—or a favourable settlement—is knowing what and where all of your evidence is and how it fits into proving your case. Just as importantly, you need to know the opposing party’s evidence and how it not only fits into their case but also affects yours.
In civil proceedings in Ontario, parties must swear under oath and exchange a document known as an Affidavit of Documents after the close of pleadings, or the point when the parties have filed all of their claims and defences. This document essentially discloses all of the documents that are relevant to any matter in issue in an action, or has been in the possession, control or power of a party to the action, and must include them unless privilege is claimed over them. This document will not be filed in court, but the documents and information therein will form the basis of evidence to be submitted at trial.
The Affidavit of Documents contains three schedules:
This schedule contains a list of documents that are in the possession of the person who has sworn the Affidavit, and to which they do not object to producing to the opposing party, their lawyers, and the Court, even if they are not ultimately submitted in Court as evidence.
It is crucial not to withhold any documents that are relevant to any matter in your case, because if you fail to produce them in your affidavit of documents, you may not be permitted to submit them as evidence in court if they are helpful to your case.
The documents may also be produced in electronic format where necessary to preserve the evidence, or where the amount of documents being produced would be too voluminous to print.
This schedule contains a list of documents that are in the possession of the person who has sworn the Affidavit that they object to producing as privileged documents. The most common form of privilege is “solicitor-client privilege,” which protects the confidential communications between a client and their lawyer, but other grounds for privilege can also apply.
This schedule contains a list of documents that are relevant to matters in the case, but that are no longer in the possession of the person who has sworn the Affidavit, whether they have been lost, destroyed or now in the possession of other persons.
Cases in Simplified Procedure in Ontario for claims of $100,000.00 or less (but not Small Claims Court matters) will require a Schedule D. This schedule contains a list of the names and address of people who have personal knowledge about the matters in the case.
Finally, the lawyer for the person swearing the Affidavit will sign a Lawyer’s Certificate stating that they have advised them of their responsibility to disclose all relevant documents, what documents are likely to be relevant, and if proceeding under Simplified Procedure, the responsibility to disclose the names and addresses of witnesses.
Full and timely disclosure is critical to advancing your case, protecting your credibility and potentially resolving matters without going to trial. The lawyers at Alemi Law Group are experienced with all elements of the litigation process and can advise you on how to best present your case in court.
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