What is an affidavit of documents and why does it matter in Ontario litigation?
An affidavit of documents is a sworn document listing all the documents a party has (or had) that are relevant to the issues in the litigation. In Ontario, parties are required to serve an affidavit of documents within a set time after the close of pleadings. The affidavit is divided into schedules: documents you are producing, documents you are claiming privilege over (such as communications with your lawyer), and documents you no longer have.
The duty to disclose is broad and ongoing. If new relevant documents come into existence or are discovered after you serve your affidavit, you must update it. Deliberately withholding documents is a serious breach of your obligations and can result in the court striking your pleadings, awarding costs against you, or drawing adverse inferences at trial.
Reviewing your documents carefully before swearing the affidavit is critical. This process often uncovers evidence that shapes litigation strategy and frequently prompts settlement discussions. Your lawyer will help you identify which documents are relevant, which are privileged, and how to organize your production properly.
Key takeaways
- An affidavit of documents lists all relevant documents you hold or held.
- You must include even documents that are harmful to your case.
- The obligation to disclose is ongoing — update it as new documents emerge.
- Withholding documents can result in serious court sanctions.