Updated November 2016
This How-To Brief outlines the steps to take when preparing an affidavit of documents.
Note: Rule 76.03 of the Rules of Civil Procedure governs affidavits of documents in actions under the simplified procedure.
1Gather what you will need
- The client's file, including the pleadings and all documents
- Rules of Civil Procedure(See the link to the Rules of Civil Procedure in the Statutes and Rules section of this How-To Brief.)
- Applicable Practice Directions and Policies (See the link to the Superior Court of Justice Practice Directions and Policies in the Resources section of this How-To Brief.)
- Form 4A, General Heading of Documents – Actions
- Form 4C, Backsheet
- Form 30A,Affidavit of Documents (Individual)
- Form 30B, Affidavit of Documents (Corporation or Partnership)
- (See the link to the Rules of Civil Procedure Forms in the Statutes and Rules section of this How-To Brief.)
- Courts of Justice Act (See the link to the Courts of Justice Act in the Statutes and Rules section of this How-To Brief.)
- Firm precedents, if any, and library resources for precedent material
2Review R. 30 of the Rules of Civil Procedure
- Review R. 30, which sets out the basic obligation on a party to disclose all documents relevant to a matter in issue in the action that are or have been in the party's possession, control or power.
- Note that the term "document" is defined broadly and includes electronic information
- Use Form 30A if the client is an individual and Form 30B if the client is a corporation or a partnership.
3Meet with the client to review the client's documents
- Review R. 30 with the client and discuss the types of documents that are likely to be relevant to the matters raised in the pleadings. Fully explain the meaning of "document" and "possession, control or power" as set out in rr. 30.01 and 30.02.
- Determine the nature of documents that are in the possession, control or power of the client that relate to the proceedings.
- Determine the nature of documents that have been, but are no longer, in the possession, control or power of the client that relate to the proceedings.
- Identify documents protected from production by solicitor and client privilege or litigation privilege. Determine which type of privilege applies to each document.
4Organize the client's documents into the required schedules
- Use Form 30A if the client is an individual and Form 30B if the client is a corporation or partnership.
- Organize the documents contained in the client's file into the following categories:
- Schedule A: Documents in the client's possession, control or power that the client does not object to producing for inspection
- Schedule B: Documents that are or were in the client's possession, control or power that the client objects to producing on the grounds of privilege—the grounds for the claim of privilege must be stated for each document
- Schedule C: Documents that were, but no longer are, in the client's possession, control or power
- Schedule D — Only for actions brought under the simplified procedure: The names and addresses of persons who might reasonably be expected to have knowledge of the transactions or occurrences in issue (r. 76.03(2))
- For each schedule, create a table, numbering each document consecutively. Set out a description of the nature of each document and the date of each document, including other particulars sufficient to identify each document.
5Have the affidavit of documents reviewed by the client
- Have the client review the affidavit of documents to ensure that Schedules A, B, C and D, if applicable, are complete and accurate.
- Review the statements contained at the beginning of the affidavit to ensure that the client fully understands the client's documentary disclosure obligations (Form 30A or 30B).
- Explain to the client the continuing obligation the client has to disclose relevant, non-privileged documents that subsequently come into the client's possession, control or power, and to correct any inaccuracies by serving a supplementary affidavit of documents (r. 30.07).
- Explain to the client the obligation to produce the documents listed in Schedule A for inspection by the other parties (r. 30.04).
- Remember and advise the client that where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with the Rules of Civil Procedure, an order of the court or an undertaking,
- if the document is favourable to the party's case, the party may not use the document at trial, except with leave of the trial judge
- if the document is not favourable to the party's case, the court may make such order as is just (r. 30.08(1))
- If there are no changes to the affidavit after the client has reviewed it, have the client swear or affirm the affidavit of documents. If changes are required, make the necessary revisions and then have the client swear or affirm the affidavit of documents.
- Prepare and send a letter to the client restating the client's discovery obligations including the client's continuing discovery obligation as discussed above. A copy of the affidavit of documents can be enclosed for the client's file and information.
6Sign the lawyer's certificate
- Review, sign and date the lawyer's certificate found at the end of Form 30A or Form 30B (as applicable), ensuring that you have complied with your obligations to explain to the client the following:
- the necessity of making full disclosure of all documents relating to any matter in issue in the action
- the types of documents that are likely to be relevant to the allegations made in the pleadings
- if the action is brought under the simplified procedure, the necessity of providing a list of names and addresses of persons as required by r. 76.03(2)
7Serve the affidavit of documents
- A copy of the affidavit of documents must be served on every party to the action (r. 30.03(1)). Note the consequences of the failure to serve an affidavit of documents, produce a document for inspection in compliance with the Rules of Civil Procedure, or comply with an order of the court under rr. 30.02 to 30.11. (See r. 30.08).
- Keep a copy of the affidavit of documents for your use and another copy for the client's file.
- Retain the original affidavit of documents and original documentary productions in a safe place at your office. Use photocopies of these documents to prepare the client for examinations for discovery.
- The affidavit of documents must not be filed with the court unless it is relevant to an issue on a pending motion or trial (r. 30.03(5)).
- Add a copy of the affidavit of documents to the pleadings brief.
- Review the opposing party's affidavit of documents, when received, for completeness. If the opposing party's affidavit of documents omits relevant documents or information, ask opposing counsel to remedy these deficiencies. If necessary, consider bringing a motion under r. 30.06.
Affidavit of documents: A listing of all documents relevant to any matter in issue in a proceeding that are or have been in a party's possession, control or power. The listing is a kind of statement that is made under oath.
Document: Includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form (r. 30.01(l)(a)).
- Superior Court of Justice Practice Directions and Policies.
- Alan C. Preyra and Ronald J. Preyra, "Building a Better Case, Being Better Prepared"
- Discovery Best Practices: Practical and Effective Tools to Guide You through the Discovery Process (Toronto: Continuing Legal Education, Law Society of Upper Canada, 2004). Review this publication at your local law library (see AdvoCAT Great Library Catalogue) or order it through the AccessCLE website. The website includes a search function to find other relevant articles from The Law Society of Upper Canada's Continuing Professional Development programs.
- Fred D. Cass, Peter Y. Atkinson & John J. Longo, Discovery: Law Practice and Procedure in Ontario (Toronto: Carswell, 1993)
10Statutes and Rules