Adjey v Chickery Holding LLC: What Can’t Be Included In An Affidavit? Toronto Employment Lawyer

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An affidavit is a sworn statement of fact. A “sworn” statement is a statement given under oath or affirmation, meaning that the affiant—the person giving the statement—has sworn to tell the truth. Lying under oath constitutes perjury, which is a criminal offence. However, there are other restrictions on what can be included in an affidavit. For example, all or part or an affidavit can be excluded from evidence if it is considered unfairly prejudicial to the opposing party, irrelevant, or “scandalous, frivolous or vexatious.”

The scope of relevance can be very narrow. In a recent decision, the Ontario Superior Court of Justice prevented an employer from alleging sexual harassment in the context of a contract dispute. The case in question— Adjey v Chickery Holding LLC, 2017 ONSC 794 —turns on the correct interpretation of the employment contract between the defendant (the employer) and the plaintiff (a former employee). However, the employer submitted an affidavit in which its Chief Financial Officer describes insubordination and sexual harassment by the plaintiff, which led to the employee’s termination.

The plaintiff filed a motion to have the relevant paragraphs of the defendant’s affidavit struck. The plaintiff argued that the allegations of insubordination and sexual harassment were “scandalous, frivolous, and vexatious.” That is to say, they were not relevant to the legal dispute and served only to impugn the plaintiff’s character. The defendant responded that the allegations were relevant to the plaintiff’s termination.

The Court granted the plaintiff’s request and ordered the offending paragraphs struck. While the Court acknowledged that the allegations were relevant to the plaintiff’s termination, it also found that they were not relevant to actual dispute between the parties, which concerns the contractual relationship between the parties prior to termination.

Parties to litigation should know that, while affidavits are important and can be very useful, swearing an affidavit is not an opportunity to level unsubstantiated allegations against the other party under the protection of absolute privilege.

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