Personal Opinions Improper in Lawyers’ Affidavits

Lawyers frequently swear affidavits in support of motions. A recent court decision cautions that a lawyer’s personal beliefs or opinions do not belong in an affidavit.

In Rochon v. Commonwell Mutual Insurance Group, 2021 ONSC 2880, the plaintiff sought to amend the statement of claim. In an affidavit, defence counsel stated that he “verily believes” that the proposed increase in the claim for damages is “frivolous, vexatious and an abuse of process” and is not “bona fide”.

Justice Gomery noted that if defence counsel has evidence on these issues, he is a potential trial witness and his firm should get off the record. Her Honour further stated that, even if defence counsel is simply expressing his personal views, his statements remain inappropriate.

Justice Gomery referred to the Rules of Professional Conduct which state that “a lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge”.

The Rules of Professional Conduct also indicate that a lawyer “should refrain from expressing the lawyer’s personal opinions on the merits of a client’s case to a court or tribunal”.

Justice Gomery referred to a previous decision which indicated:  “in the client’s eyes, the lawyer who swears in her belief as to the appropriate outcome of a proceeding is implicitly criticizing the court should it come to a different view”.  Therefore, a lawyer who expresses his or her personal opinion or belief can undermine the administration of justice.

In summary, affidavits of lawyers should contain facts and evidence, not the lawyer’s personal beliefs or opinions, particularly on highly contentious issues.