# Affidavit Evidence — Practical Guide Affidavit evidence has its own rules. What you can put in an affidavit, how it's assessed, and what the traps are. --- ## The Fundamentals An affidavit is: - A written statement - Of facts - Sworn or affirmed - Before a person authorized to administer oaths Everything in an affidavit is offered as evidence. Everything is subject to cross-examination if cross-examination is available. --- ## What Can Go In an Affidavit ### Personal Knowledge Statements The default. The affiant states what they personally know. Signals of personal knowledge: - "I saw / heard / did / said" - "On [date], I was present at..." - "I signed / received / sent..." Weight: strong. ### Information and Belief Where the affiant learned facts from someone else and believes them true. Must be clearly identified. Format: - "I am informed by [source] and verily believe that [fact]" - "Based on information received from [source]..." The source must be identifiable — "I am informed by a reliable source" without identification is often disregarded. Weight: weaker than knowledge, sometimes admissible only for interlocutory matters. ### Documentary Exhibits Documents attached as exhibits become part of the evidence when the affiant properly identifies them. Standard form: "Attached and marked as Exhibit "A" to this affidavit is a true copy of [description of document]." Common exhibit types: - Correspondence (letters, emails) - Contracts and agreements - Prior filings or decisions - Photographs - Records Each exhibit needs to be identified in the body of the affidavit and attached in proper form. --- ## What CANNOT Go In an Affidavit (Or Should Not) ### Argument Affidavits contain evidence. Submissions contain argument. Mixing them weakens both. Wrong: "The landlord clearly intended to circumvent the RTA." Better: state the facts. Save the characterization for submissions. ### Legal Conclusions Affiants generally cannot swear to legal conclusions. Wrong: "The notice was not properly served." Better: state the facts about how the notice was received. Whether service was "proper" is a legal question. ### Characterizations of Motive Unless the affiant has direct knowledge of another person's motive (rare), motive characterizations are opinion, not fact. Wrong: "The landlord served the notice because they wanted to raise the rent." Better: state the facts (timeline of notice, subsequent re-rental, rental rate) and let the tribunal draw the inference. ### Hearsay Not Properly Framed Repeating what someone else said, offered for its truth, without proper information-and-belief framing. Wrong: "The tenant next door said the landlord was renovating." Better: "I am informed by [Name] and verily believe that [fact]." Or attach an affidavit from the tenant next door. ### Speculation Guesses about what someone else knew, thought, or intended. Wrong: "I believe the landlord must have known..." Better: state observable facts. ### Argumentative Descriptions Loaded language that presumes the conclusion. Wrong: "The landlord's manipulative scheme..." Better: "On [date], the landlord did [specific action]." --- ## Structural Requirements ### Standard Opening Most jurisdictions require an opening substantially in the form: "I, [full name], of [address], [occupation], SWEAR / AFFIRM AS FOLLOWS:" Followed by: "1. I have personal knowledge of the matters and facts hereinafter deposed to except where stated to be on information and belief and, where so stated, I do verily believe them to be true." ### Numbered Paragraphs Each fact in its own paragraph. Numbered sequentially. Short paragraphs better than long ones. ### Present or Past Tense Facts are stated in the tense they occurred. ### Chronological Structure Usually easiest to follow. Not required. ### Jurat The concluding section where the affidavit is sworn. Includes: - Location - Date - Signature of affiant - Signature of commissioner - Commissioner's identification --- ## Exhibits — Practical Guidance ### Numbering / Lettering Exhibits are typically lettered (A, B, C...) or numbered (1, 2, 3...). Whichever you use, use consistently. ### Cross-Referencing Every exhibit must be referred to in the body of the affidavit. The reference identifies the document and its relevance. ### Physical Attachment Each exhibit needs to be: - Physically or electronically attached - Marked with the exhibit identifier - Endorsed by the commissioner (or per applicable rules) ### Redaction If exhibiting a document that contains privileged, irrelevant, or sensitive material, redact appropriately and note the redaction. ### Bulk Documents Where many documents are exhibited, consider an index or bundle. Some jurisdictions require it above a threshold. --- ## Sworn vs Affirmed Same legal effect. Distinction is one of religious/personal preference: - **Sworn** — on the affiant's religious book (traditionally Bible; now any religious text or none) - **Affirmed** — solemn declaration without religious reference Both attract the same penalties for false statements (perjury). --- ## Cross-Examination on Affidavit In some proceedings, an affiant may be cross-examined on their affidavit. Preparation for cross: ``` □ Read your own affidavit three times before cross □ Have supporting documents at hand □ Know every statement — every source, every basis □ Anticipate challenges to each paragraph □ Practice responding to hostile questions □ Do not exceed the affidavit — if you don't know, say so ``` Preparation to cross others: ``` □ Read the opposing affidavit using critical-reading protocols □ Sort every statement into knowledge / information-and-belief / argument / conclusion □ Identify contradictions with documents or other evidence □ Identify unsourced statements □ Identify argumentative content that can be attacked as improper □ Prepare specific questions on each load-bearing paragraph ``` --- ## The Motion to Strike Some jurisdictions permit motions to strike improper affidavit content. Even where formal motions are not available, tribunals may give reduced weight to improper content on request. Grounds: - Statements not based on personal knowledge or proper information and belief - Argument masquerading as evidence - Legal conclusions - Irrelevant material - Speculation - Scandalous or vexatious material The remedy may be strike, redaction, or reduced weight. --- ## Affidavit in Judicial Review Special considerations: - **No new evidence rule** — generally, only evidence before the tribunal can be considered on judicial review, subject to narrow exceptions (procedural fairness, jurisdictional facts, background) - **The record** — the affidavit typically annexes the tribunal record rather than re-litigating the merits - **Petitioner's affidavit** — identifies the petitioner, establishes standing, may include limited procedural fairness evidence - **Respondent's affidavit** — often unnecessary if the record is complete Getting the affidavit wrong in JR can attract objection and reduce the strength of the petition. --- ## Common Failures — Self-Represented Litigants Common mistakes: - Treating the affidavit as argument - Mixing knowledge and belief without distinction - Including hearsay without framing - Attaching exhibits without proper reference or endorsement - Long, argumentative paragraphs - Emotional or characterizing language - Failing to organize chronologically or by issue Discipline: state the facts. State them precisely. Let submissions do the argumentative work. An affidavit that is disciplined earns credibility; one that is not, loses it.