Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
It’s about having your materials rejected at the counter.
I’ve learned how to avoid it.
But there’s one set of rules that still trips me up – and it’s because the rules make no sense.
The Ontario Superior Court of Justice requires original affidavits to be filed.
It also requires consecutively numbered pages in your motion record.
These two rules do not work well together.
Consecutive numbering means your affidavit will have little numbers at the bottom – and the page numbering does not start at #1. It starts at around page 10, depending on how long your index and notice of motion is.
How do you have an affiant swear an affidavit with those little numbers on the bottom? Well, it should mean that you have the affiant swear the affidavit right at the end of drafting the motion record – presumably at the point of binding – after everything has been stamped with consecutive numbers – after the Notice of Motion is drafted.
But that doesn’t make sense. The Notice of Motion refers to the affidavit by date and lists each attachment to the affidavit – so it has to be drafted later in time.
It also doesn’t make sense to present your affiant with a very final affidavit for signing. Your affiant should be free to quibble with the contents of the affidavit. He should be able to say “oops – there’s a mistake – let’s fix it.” If the motion record is about to get bound, the pressure will be on to let mistakes slide.
Also, your affiant should be free to swear an affidavit when he’s available – and not necessarily on the date when you are finalizing your Notice of Motion.
This reality probably means that lawyers do what I have been doing. You assemble your motion record after the affidavit is sworn. You assemble your motion record with consecutive numbering on a copy of the affidavit. Then, you replace the signature pages of the affidavit copy with originals so that it “looks” original.
The original pages won’t have the consecutive numbering on the bottom.
But that’s okay because it just needs to be good enough to get by the clerk.
It’s what we do – even though it means the “originality” of the affidavit is actually eviscerated. It’s no longer the document my affiant signed.
Well today, the clerk rejected my motion record. It was a copy. I forgot to replace the signature pages before binding. I knew that was a problem so I included a second, original affidavit.
That wasn’t good enough. So my process server kindly reassembled the documents for me.
I don’t see why my materials should have been rejected.
Just a short while ago, I was served with three affidavits – each fastened with a staple. They were filed that way with the court. The court file on that matter is a mess.
My motion record – with second “original” affidavit – was a thing of beauty, in comparison with what has been accepted on other files.
It’s so arbitrary. But I digress.
My suggestion? Dispense with the requirement to file original affidavits. Or give up on consecutive numbering. I prefer the former.
Unless . . . am I missing something here?
If anyone else has stumbled upon another solution to these paradoxical rules, please share. Or please confess that you too are replacing consecutively numbered copies with un-numbered originals.