Civil Procedure Rules of Nova Scotia  
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Part 9 - Pleading, Affidavit, and Brief

Rule 39 - Affidavit

Scope of Rule 39
39.01   A party may make and use an affidavit, and a judge may strike an affidavit, in accordance with this Rule.
       
Affidavit is to provide evidence
39.02 (1) A party may only file an affidavit that contains evidence admissible under the rules of evidence, these Rules, or legislation.
  (2) An affidavit that includes hearsay permitted under these Rules, a rule of evidence, or legislation must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information.
       
Editing exhibit
39.03 (1) A party must edit out personal information not required to prove or disprove a fact in issue from an exhibit attached to, or referred to in, an affidavit to be filed by the party.
  (2) A party who edits information from an exhibit must do so in such a way that the reader of the exhibit sees where text has been edited out, such as by obliterating text on part of a page, leaving a shaded blank in the text of electronic information, or inserting a note that indicates a number of pages or a quantity of text has been removed.
  (3) The party must, on demand, produce the unedited document or electronic information for inspection by another party.
       
Striking part or all of affidavit
39.04 (1) A judge may strike an affidavit containing information that is not admissible evidence, or evidence that is not appropriate to the affidavit.
  (2) A judge must strike a part of an affidavit containing either of the following:
   
(a)
information that is not admissible, such as an irrelevant statement or a submission or plea;
   
(b)
information that may be admissible but for which the grounds of admission have not been provided in the affidavit, such as hearsay admissible on a motion but not supported by evidence of the source and belief in the truth of the information.
  (3) If the parts of the affidavit to be struck cannot readily be separated from the rest, or if striking the parts leaves the rest difficult to understand, the judge may strike the whole affidavit.
  (4) A judge who orders that the whole of an affidavit be struck may direct the prothonotary to remove the affidavit from the court file and maintain it, for the record, in a sealed envelope kept separate from the file.
  (5) A judge who strikes parts, or the whole, of an affidavit must consider ordering the party who filed the affidavit to indemnify another party for the expense of the motion to strike and any adjournment caused by it.
       
Scandalous affidavit
39.05   A party who files a scandalous, irrelevant, or otherwise oppressive affidavit is subject to the provisions of Rule 88 - Abuse of Process.
       
Use of affidavit in same proceeding
39.06 (1) An affidavit may be filed for use on a motion or application.
  (2) An affidavit filed on a motion in a proceeding may be used on another motion in the proceeding, if the party who wishes to use the affidavit files a notice to that effect before the deadline for that party to file an affidavit on the motion.
  (3) The affidavit may be used for other purposes in the proceeding, if a judge permits.
       
Use of affidavit in other proceeding
39.07   An affidavit filed with the court may be used, in whole or in part, in another proceeding for either of the following purposes:
   
(a)
to impeach the witness who swore or affirmed the affidavit;
   
(b)
to prove a fact, if the affidavit or the part does not contain hearsay or the hearsay is admissible under legislation, these Rules, or a rule of evidence that provides an exception to the rule excluding hearsay.
       
Form of affidavit
39.08 (1) An affidavit must be entitled “Affidavit” and the title may include other words to distinguish it from other affidavits, such as including the name of the witness who swears or affirms the affidavit, the date it is sworn or affirmed, or the word “supplementary”.
  (2) An affidavit must contain the standard heading, and include all of the following:
   
(a)
the opening, identifying the witness and showing that the witness is giving sworn or affirmed evidence;
   
(b)
the witness’ statement, by which the relationship of the witness to the proceeding is stated, and the witness swears or affirms that the affidavit contains only information based on personal knowledge, or hearsay with a statement of the source and the witness’ belief of the information;
   
(c)
the body, providing the main evidence, with each sentence set out separately and numbered and with references to exhibits by letter, number, or other identifier;
   
(d)
a jurat showing that an oath or affirmation was administered, and the date and place when and where the witness personally appeared before the authority administering it;
   
(e)
the printed name and official capacity of the authority administering the oath or affirmation.
  (3) An exhibit that can be attached conveniently to the affidavit must be attached when it is sworn or affirmed, and an exhibit that cannot be attached conveniently must be filed with the affidavit.
  (4) The pages of a long exhibit must be numbered, and ten or more exhibits attached to the same affidavit must be separated by a numbered or lettered tab.
  (5) An affidavit with ten or more exhibits must include, before the exhibits, a table of contents identifying each exhibit and its tab number or letter.
  (6) An affidavit may be in Form 39.08.
       
Proof of exhibit
39.09 (1) A party who files an affidavit that includes an exhibit must ensure that the authority who administers the oath or affirmation marks the exhibit so it is clear that it is the exhibit referred to in the affidavit.
  (2) An exhibit is adequately marked if the following are placed on, or attached to, the exhibit and the exhibit is signed by the authority administering the oath or affirmation:
   
(a)
the registry number;
   
(b)
the number, letter, or other identifier by which the exhibit is referred to in the affidavit;
   
(c)
the name of the witness;
   
(d)
a reference to the witness’ oath or affirmation;
   
(e)
the date the affidavit is sworn or affirmed.
  (3) The writing that marks an exhibit may be in Form 39.09.
       
Administering oath or affirmation
39.10 (1) Two or more witnesses may swear or affirm a single affidavit with separate jurats for each witness, if they are sworn or affirmed separately, and a single jurat if they are sworn or affirmed together.
  (2) A witness who cannot read may swear or affirm an affidavit certified by the authority who administers the oath or affirmation as having been read to the person, or the person may give evidence orally under oath or affirmation before a court reporter who provides a certified transcript.
  (3) A witness who reads, but does not read English, may swear or affirm an affidavit in a language the witness does read, or swear an affidavit in English certified by the authority who administers the oath or affirmation to have been translated for, and apparently understood by, the witness.
  (4) A witness who cannot see may swear or affirm an affidavit in Braille or swear or affirm an affidavit certified by the authority who administers the oath or affirmation to have been read to the witness.
  (5) An affidavit that has been marked or written on, such as where a witness writes on or draws a line through words in a draft affidavit to correct it, may be sworn or affirmed if the authority administering the oath or affirmation initials a mark or writing to show it was there when the affidavit was sworn.
  (6) An officer or employee of a corporate party may swear or affirm an affidavit required to be sworn or affirmed by a party and any partner may swear or affirm such an affidavit for a partnership.
       

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