Affidavit Evidence During a Pandemic

So you have a dog nipping at your feet, a child pulling on your sleeve, something cooking on the stove, and your phone rings in the middle of your Zoom conference call.

The affidavit that you have open on your computer certainly isn’t getting your undivided attention. This probably isn’t going to be your best work.

Justice Myers of the Superior Court of Justice heard a consent motion to transfer a case under Rule 13.1.02 (2) in Polgampalage v Devani. Although these motions can be rather routine, especially on consent, he noted that there are judicial considerations for these requests as well,

[5] …a change of venue affects interests beyond the immediate interests of the parties to the litigation. It is also an issue affecting utilization of the court’s resources. The Consolidated Provincial Practice Direction deals expressly with motions to change venue for this reason. Para. 49 of the Practice Direction requires that the motion be brought to the Regional Senior Justice of the location to which the change of venue is sought so that she or he can consider resource issues. I am hearing this motion as delegate of the Toronto Region RSJ.

During a pandemic, the high volume of requests to transfer civil proceedings still require the moving party to demonstrate that the request to transfer is in the interests of justice. Justice Myers took issue with the affidavit evidence supporting the request of the court, noting that the details around why the transfer was necessary were omitted,

[8] The plaintiff’s evidence is adduced by a student at the plaintiff’s lawyers’ firm. The student advises that he has reviewed the file so that he has knowledge of the matters to which he testifies save and except where his evidence is based on information and belief. Actually, ignoring the waiver of privilege issues arising from a bald statement of having reviewed the file, when one has no personal knowledge of events and reviews a file to obtain evidence, all of the evidence is hearsay.

[9] Para. 4 of the student’s affidavit says:

On or about June 20. 2019, this action was commenced in the Ontario Superior Court of Justice on behalf of the Plaintiff by the Statement of Claim bearing Windsor Court File number CV-19-27873. It was commenced in Windsor on the misunderstanding that both parties were residing in Windsor. It has been determined that the Action should have been commenced in Toronto.

[10] I note the repeated use of the passive voice in this paragraph. While things happened, I am not told who did them or for what purpose. For example, who had a misunderstanding about where the parties lived, and when? What was the nature of the misunderstanding? Who determined that the action should have been commenced in Toronto? On what basis did the undisclosed person determine that the action should have been commenced in Toronto?
[11] The affidavit never tells me where either party lives.

[15] Mistakes happen. Or said in the active voice – people make mistakes. That would not seem to be a major concern. But I do not know if that is indeed the case.

The lack of details or discussion of the relevant test led him to conclude,

[39] On the evidence submitted, ignoring its inadmissibility, there is not a single factor in Rule 13.1.02 that has been shown to connect this action with Toronto. There is no basis in the evidence adduced to support a submission that a transfer to Toronto is desirable in the public interest.

[40] I find it very disappointing that a principal allowed a student-at-law to swear and submit the affidavit that is before me. Closer supervision was required.

[41] The pandemic has been a difficult time for everyone. I have special empathy for students and young lawyers who may be deprived of close contact with mentors and senior peers to assist with their training. Partners, employers, and mentors may not even realize how much their juniors are suffering from the lack of ready access to more experienced colleagues whether for formal training, informal feedback, or even serendipitous educational opportunities that may arise from casual chats in office corridors.

[42] But all students and lawyers also have independent duties to scrutinize with great care every word to which they put their names. During the pandemic in particular, juniors need to insist that they receive full instructions and that their work product is properly reviewed. As difficult as it may be at times, junior lawyers and students alike must guard against allowing employers, clients, or anyone to put their integrity or reputations at risk by inadequate instructions or releasing inadequately reviewed material under their names.

Supervision of anyone during a pandemic, where everyone is working remotely, is challenging at best. Justice Myers’ other recent decision in 713949 Ontario Limited v Hudson’s Bay Company ULC, where he granted an adjournment, provides further context to these difficulties,

[16] The court takes very seriously issues of health and wellness of practitioners, members of the judiciary, and court staff during the pandemic in particular. While lawyers and the courts are in a service business, there has to be a brake applied to service providers’ willingness to compete themselves (or their juniors) into unhealthy states in the ordinary course of business. Recognizing that young counsel and staff may have other responsibilities or just need down time does not impair access to justice provided that everyone understands the need to make personal sacrifices when truly urgent circumstances arise.

[18] In my view, it is in the interest of justice to ensure that the respondent has counsel of its choice available for the motion and not to schedule the motion to squeeze the judge, court staff, and juniors on both sides unnecessarily. Absent urgency that was not voluntarily assumed, I find it to be in the interests of justice to grant the adjournment sought.

Despite the frustrations of clients, opposing counsel, and even the courts, it might be wise to signal to everyone that things will not be business as usual. Matters will only move ahead, and move ahead properly, with the appropriate communication, cooperation, and consideration of all of the parties.

If not, your student’s affidavit will be scrutinized by a judge. In a passive voice at that.

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