Affidavit Evidence During a Pandemic

So you have a dog nipping at your feet, a child pulling on your sleeve, something cooking on the stove, and your phone rings in the middle of your Zoom conference call.

The affidavit that you have open on your computer certainly isn’t getting your undivided attention. This probably isn’t going to be your best work.

Justice Myers of the Superior Court of Justice heard a consent motion to transfer a case under Rule 13.1.02 (2) in Polgampalage v Devani. Although these motions can be rather routine, especially on consent, he noted that there are judicial considerations for these requests as well,

[5] …a change of venue affects interests beyond the immediate interests of the parties to the litigation. It is also an issue affecting utilization of the court’s resources. The Consolidated Provincial Practice Direction deals expressly with motions to change venue for this reason. Para. 49 of the Practice Direction requires that the motion be brought to the Regional Senior Justice of the location to which the change of venue is sought so that she or he can consider resource issues. I am hearing this motion as delegate of the Toronto Region RSJ.

During a pandemic, the high volume of requests to transfer civil proceedings still require the moving party to demonstrate that the request to transfer is in the interests of justice. Justice Myers took issue with the affidavit evidence supporting the request of the court, noting that the details around why the transfer was necessary were omitted,

[8] The plaintiff’s evidence is adduced by a student at the plaintiff’s lawyers’ firm. The student advises that he has reviewed the file so that he has knowledge of the matters to which he testifies save and except where his evidence is based on information and belief. Actually, ignoring the waiver of privilege issues arising from a bald statement of having reviewed the file, when one has no personal knowledge of events and reviews a file to obtain evidence, all of the evidence is hearsay.

On or about June 20. 2019, this action was commenced in the Ontario Superior Court of Justice on behalf of the Plaintiff by the Statement of Claim bearing Windsor Court File number CV-19-27873. It was commenced in Windsor on the misunderstanding that both parties were residing in Windsor. It has been determined that the Action should have been commenced in Toronto.

[15] Mistakes happen. Or said in the active voice – people make mistakes. That would not seem to be a major concern. But I do not know if that is indeed the case.

The lack of details or discussion of the relevant test led him to conclude,

[39] On the evidence submitted, ignoring its inadmissibility, there is not a single factor in Rule 13.1.02 that has been shown to connect this action with Toronto. There is no basis in the evidence adduced to support a submission that a transfer to Toronto is desirable in the public interest.

[40] I find it very disappointing that a principal allowed a student-at-law to swear and submit the affidavit that is before me. Closer supervision was required.

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