Page: 41
that case, the affidavit was admitted given the uncontroversial nature of the exhibits and their
minimal importance to the motion. That is not the case here. Mr. Henein’s affidavit goes directly
[106] The Court may have been inclined to overlook the Rule 82 difficulty with Mr. Henein’s
affidavit had it been confined to the facts supporting the motion. The purpose of an affidavit is to
adduce facts relevant to the dispute without gloss or explanation: Canada (Attorney General) v
Quadrini, 2010 FCA 47 at para 18. However, the Henein affidavit is replete with statements of
opinion, argumentation, allegations against opposing counsel and conclusions of law on the very
issues which are before the Court for determination.
[107] The usual remedy for an affidavit that contains portions that are tendentious, opinionated
and argumentative is to strike out those portions upon a motion prior to the hearing: Deigan v
Canada (1996), 206 NR 195 (FCA). Where the arguments and conclusions of law are
unseverable the entire affidavit should be struck: Duyvenbode v Canada, 2009 FCA 120. That
was not done in this case due to the pre-hearing arrangement between the parties not to crossexamine each others’ deponents and withdrawal of the motion to strike the Henein affidavit. But
in my view the content of the affidavit, other than as a vehicle to introduce the exhibits, was
improper and I will exercise my discretion to give it no weight or probative value. The exhibits
remain part of the record.
(b)
Conclusion on maintenance and champerty
2013 FC 525 (CanLII)
to the substance of the motion and to the merits of the applications.
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