Civil procedure

9. Applications in Chambers, Affidavits & Advocacy

TOPICS - Applications, Affidavits, Advocacy

Readings: SCCRs Part 8; 22-2, 23-6

Ulrich v Ulrich

Adroit Resources v Tresor Resources

Advocacy

• 
  A good advocator establishes a good trust to the judge, the other party
  
  • 
    Way to establish trust is being truthful and conveying genuineness
    
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    Have to be a reasonable counsel
    
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  Tying in affidavits with advocacy; making errors in an affidavit, or poorly drafted affidavits is a bad reflection on advocacy
  
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    Advocacy has to do with more than just what you say in court
    

Affidavits

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  Affidavit – is a written statement of evidence sworn by person giving evidence in front of a person authorized to take affidavits
  
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    Affidavits are SWON EVIDENCE – need to make sure their contents are TRUE. False affidavits = perjury which is a criminal offence.
    
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    Persons who may take affidavits – judges, justices of peace, court registrars, lawyers in good standing, municipal clerks, regional secretaries, gov agents, coroners, persons appointed by AG, all commissioned officers of Canadian Armed Forces
    
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  Practically speaking, when someone is to swear evidence in a proceeding, the lawyer would work to construct an affidavit with that person, that properly sets out the facts in the evidence that would come into the litigation.
  
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    Needs to convey to the witness/client that everything in the affidavit have to be true – and when they confirm this and signed, this becomes a sworn affidavit
    
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    You have to be in the same location when swearing an affidavit
    
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  *Note: Rule 9-5-1 although it deals with pleadings, it Court may order any document that is frivolous, vexatious…etc., to strike out either completely or partially. So the same rule to strike out pleadings, may be applied to affidavits.
  

Difference between final orders vs interlocutory orders with Heresay (Ulrich v Ulrich)

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  Heresay – evidence based on someone told them something
  
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  Application seeking Interlocutory Order - heresay is admissible in affidavit (as long as you know the source of evidence – Rule 22-2 (13) - p.63
  
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  Application seeking Final Order – heresay is NOT admissible in an affidavit – Rule 22-2 (13)
  

Rule 22-2 – Affidavits

RULE 22-2 – p.62, 63

Affidavit to be filed

(1)An affidavit used in a proceeding must be filed.

 Affidavits ought to be prepared ahead of time, and filed as official evidence and not just pulled out mid-way


Form and content of affidavit

(2) Gives practical rules on the form & content that affidavits should take

(13) Heresay evidence is admissible in affidavits for interlocutory orders, and NOT final orders

Ulrich v Ulrich (L.M.U v R.L.U)

[Admitting Heresay; when making applications seeking interlocutory orders, heresay is admissible]

FACTS

R-Ulrich (Man) was trying to settle a matrimonial dispute with L-Ulrich (Woman). Man accepted the offer for settlement for 350k on Oct 3 after receiving a settlement offer on July 10. Man Ulrich pointed out that it would take 10 days for the money to make it into the T account. The same day, Woman Ulrich said “sure” and extended the deadline to the 28^th. 3 days later they withdrew their offer.

RULE

When making applications seeking interlocutory orders, heresay is admissible; whereas application for final orders, heresay not admissible.

ANALYSIS

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  The courts do have the ability to enforce the offer that was made assuming there is no contested issue on the facts. This is especially true if it is a final order.
  
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  If there are contested facts or issues of law, judges should avoid making final orders.
  
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  The hearsay evidence is ok when seeking an interlocutory order because the results of it can normally be remedied if it turns out to have impeded the court proceedings
  

HOLDING

Deal upheld

**ADDITIONAL NOTES**

Hearsay –Discussion in Ulrich v Ulrich (LMU v RLU)

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  When making applications seeking interlocutory orders, hearsay is admissible.
  
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  When making applications for final orders, hearsay is not admissible
  
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    This is based on a policy to save resources, not necessarily key in the case of interlocutory orders to demand solid evidence
    
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    If a judge can still clean up the mess caused by reception of hearsay evidence at trial, interlocutory applications can me made
    
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  Hearsay relates to documents as well as oral statements.
  
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  Letters you did not write or swear the truth to can still be used in interlocutory applications
  

Judges Notes Regarding Hearsay Evidence – Ulrich v Ulrich

1. 
   Affidavits filed in support of interlocutory application may contain oral and written hearsay evidence
   
2. 
   A hearsay affidavit intending to prove facts of an out of court oral statement or written document must point to the source of the info and a statement that the deponent believes the statement to be true
   
3. 
   An affidavit sworn on information and belief only for the purpose of proving a statement was made must reveal the source of the claim and the relevant purpose for admitting the statement
   
4. 
   An affidavit sworn on information and belief for the purpose of proving the contents of all or part of a written document authored by a person other than the deponent must reveal the source of the document and the relevant purpose for admitting the document.
   
   1. 
      A document is not admissible on an application unless a deponent proves it in one of the two ways just mentioned.
      
5. 
   If there are seriously contested issues of fact b/w the parties about the terms of a settlement agreement that depend upon credibility issues, it appears that the party alleging the agreement should bring an application in the action and then apply for a trial of the issues, or commence a new action.
   
   1. 
      If the facts as to the terms of a settlement agreement are not in serious dispute and the only issue is the agreement’s legal validity, a court apparently has the authority to decide the issue by way of a motion in the action based upon affidavit evidence.
      

Limits to Hearsay

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  Won’t be considered true unless person who made the statement is brought before the court.
  
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  Cannot put multiple hearsay sources into affidavits, must be she told me, he told me.
  
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  Source of hearsay must be clearly pointed out.
  
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  Deponent must swear hearsay evidence to be true for purposes of interlocutory application
  
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  Opinions in Hearsay are not accepted unless they are by an expert by the court.