moreau CJ

13.18: Types of affidavit

Case Summary

The Plaintiffs sought a Declaration that new bylaws adopted by the Defendants were invalid, and that the Defendants’ old bylaws should continue. They also sought a determination respecting membership of one of the Defendants, the Chinatown Multilevel Care Foundation (“CMLCF”), and an Order requiring the CMLCF to hold an annual general meeting and elect a new Board of Directors.

Chief Justice Moreau considered whether there was a requirement that an Affidavit that was sworn by one of the Plaintiffs be based on the Affiant’s personal knowledge. Her Ladyship noted that Rule 13.18(3) requires that Affidavits used in support of Applications that may dispose of all or part of a Claim must be sworn on the basis of the Affiant’s personal knowledge. The Defendants argued that the Plaintiffs sought an Order that was “final in nature”, but much of the Affidavit in question had been sworn on the basis of belief. Further, other individuals who had personal knowledge of the bylaws and memberships at issue did not swear Affidavits. The Plaintiffs argued that the Defendants had also relied on an Affidavit that was sworn based on belief, and not personal knowledge. However, it was executed by the Affiant as an officer of CMLCF, and not in her personal capacity.

Moreau C.J. held that both parties had primarily relied on documentary evidence rather than personal knowledge, and that Plaintiffs’ Affidavit evidence reflected the information found in the documents, as well as the evidence of the Defendants’ witness. As such, Her Ladyship concluded that, in the circumstances, weight should be given to the Plaintiffs’ Affidavit evidence.

The Plaintiffs’ Application for declaratory and ancillary relief was dismissed on other grounds.

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