When a Person Is Swearing An Oath to State the Truth Within An Affidavit, Must the Person Actually Have Knowledge About What Is Said Within the Affidavit?

When a Person Takes Oath to Swear or Affirm the Truth of Information Stated Within An Affidavit, the Law Expects That Such Person Actually Knows That the Stated Information Is True.

Understanding That Swearing or Affirming an Affidavit Requires Actual Knowledge or Belief For What Is Stated

Lawsuit Document An Affidavit document is a very serious legal document containing statements that must be stated truthfully based upon the knowledge or beliefs of the person who is swearing or affirming that the information within the Affidavit is indeed true.  Accordingly, swearing or affirming that the statements within an Affidavit are true, while being without actual knowledge or belief, is improper and perhaps criminal.

The Law

In the recent court case of Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870, the Court of Appeal addressed the serious concern regarding an Affidavit that was prepared by a legal representative and then provided to a person to make Oath and swear or affirm that the Affidavit contents were true despite the person being unable to read the Affidavit and therefore being unaware of what information was stated as truthful.  Upon reviewing the suggestion that it is notoriously understood and common that a legal representative, such as a lawyer or paralegal, will draft an Affidavit containing statements that a person should state and then the lawyer or paralegal will provide the Affidavit to a person to swear or affirm under Oath that the statements are true, the Court of Appeal said:

[9]   I pause, at this point, to reflect on a rather disturbing issue regarding the moving party’s affidavit filed on this motion. Her counsel advises that the moving party does not read English. When I inquired how she could have then sworn her affidavit in these proceedings, I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign.

[10]  It should go without saying that that is not the way that any affidavit is properly prepared. The deponent of an affidavit is required to review its contents and swear or affirm to its truth. It is the obligation of the person commissioning the affidavit to ensure, among other things, that he or she administers the oath or declaration in the manner required by law before signing the jurat or declaration: Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not understand English, then the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact.

As explained by the Court of Appeal in Teefy Developments, the input of the person who will swear or affirm that the statements within the Affidavit document are true is required; and, when a lawyer or paralegal, figuratively put words into the mouth of a person, by drafting an Affidavit without the genuine input of the person who will swear or affirm that the Affidavit contains truthful statements, the lawyer or paralegal acts inappropriately.

"... I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign"
~ Nordheimer J.A.

If a person is providing live voice testimony as a witness, or provides witness testimony via statements sworn or affirmed as truthful within an Affidavit document, despite that the person is without actual knowledge or belief and is merely stating what the person was told to say or state, such a person may be committing a criminal act per the Criminal Code of Canada, R.S.C. 1985, c. C-46 wherein it is stated:

Perjury

131 (1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

Fabricating evidence

137 Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Summary Comment

A person who swears or affirms that the contents of an Affidavit are true, meaning that the information stated within the Affidavit is true, must actually know or believe that the information is true.  When a person takes Oath and swears or affirms that an Affidavit is true, the person doing so must do so genuinely rather than doing so just because a lawyer or paralegal, or someone else, told the person to do so.

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