An application to adduce fresh evidence in an appeal of a successful personal injury jury award was thwarted by a deficient affidavit from a legal support staff. This million dollar personal injury award case arising out of a car accident injury (Albert v. Politano, 2013 BCCA 194) deserves more than one article as personal injury lawyers will also be interested in how the court dealt with the future loss of earnings award appeal.
As most lawyers experienced in personal injury know Rule 22-2(13) of the Supreme Court Civil Rules governs the content of affidavits: (13) An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if (a) the source of the information and belief is given, and (b) the affidavit is made (i) in respect of an application that does not seek a final order …
The affidavit of the legal assistant did not identify the source of the information and did not attest to her belief in it and was found to be inadmissible. This was more than a technical deficiency; by failing to reveal the source, the reliability of the information is put beyond the reach of the opposing personal injury lawyers . Any cross-examination on the affidavit, by definition, would not be of the best source of the information.
Simply put at paragraph 25 by Judge Saunders, “…where a final order is sought to be upset, the best evidence is the standard that must be met. We have not been provided with that best evidence.” The fresh evidence application was dismissed.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
