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RULE 48
AFFIDAVITS

Analysis



Form of Affidavits

48.01. An affidavit used in a proceeding shall be

             (a)  entitled in the proceeding, except where there is more than one plaintiff or defendant or proceeding in which it shall be sufficient to state the name of the first plaintiff, defendant and proceeding followed by the words "and others" or "and other proceedings", as the case may be;

             (b )  expressed in the first person and state the name in full, place of residence and occupation of the deponent, and if the deponent is a party, or the solicitor, agent or employee of a party, that fact shall be stated;

             (c)  divided into paragraphs numbered consecutively, with each paragraph being confined as far as possible to a distinct portion of the subject, and any dates, sums, and other numbers may be expressed in figures; and

             (d)  signed by the deponent with the jurat completed and signed by the person before whom it is sworn or affirmed.

1986 c42 Sch D rule 48.01

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Contents of Affidavit

48.02. (1) An affidavit used on an application may contain statements as to the belief of the deponent with the sources and grounds thereof.

             (2)  Unless the Court otherwise orders, an affidavit used on a trial shall contain only such facts as the deponent is able of his or her own knowledge to prove.

1986 c42 Sch D rule 48.02

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Exhibits

48.03. (1) An exhibit, referred to in an affidavit being produced, attached or otherwise annexed, shall be identified by the person before whom it is sworn or affirmed with a certificate in the following form:

This is Exhibit "_____" referred to in the affidavit of __________, sworn or affirmed before me this day of __________, 19_____.

(A __________ of the Supreme Court of Newfoundland and Labrador .)

             (2)  An exhibit referred to in an affidavit, that is not stated to be attached or otherwise annexed and that bears the certificate of the person before whom it is sworn or affirmed, shall be left with the Court and, unless otherwise ordered, shall be returned on the disposal of the application, provided that, when possible, a true copy of the exhibit shall be attached to the affidavit when it is filed and served.

1986 c42 Sch D rule 48.03; 2001 c42 s45; 36/14 s59

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Affidavit by two or more deponents

48.04. Where an affidavit is made by two or more deponents, the name of each deponent shall be inserted in the jurat or jurats , unless all the deponents are sworn or affirmed before the same person at the same time when the words "above named deponents" may be used.

1986 c42 Sch D rule 48.04

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Affidavit of body corporate or partnership

48.05. (1) An affidavit may be made on behalf of a body corporate or association by an officer, servant or agent thereof.

             (2)  An affidavit may be made on behalf of a partnership by any member of the partnership or any servant or agent thereof.

1986 c42 Sch D rule 48.05

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Affidavit by illiterate or blind person

48.06. Where it appears to a person before whom an affidavit is sworn or affirmed that a deponent is illiterate or blind, that person shall certify in the jurat that

             (a)  the affidavit was read in his or her presence to the deponent who seemed to understand it, and

             (b)  the deponent signed the affidavit or placed his or her mark on it in his or her presence,

and unless it is so certified the affidavit shall not be used without the leave of the Court.

1986 c42 Sch D rule 48.06

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Interpreter

48.07. Where it appears to a person before whom an affidavit is sworn or affirmed that a deponent does not understand the language used in the affidavit,

             (a)  the contents of the affidavit before it is sworn or affirmed shall be interpreted to the deponent by a competent interpreter, who before doing so shall be sworn or affirmed by the person administering the oath or affirmation to correctly interpret the affidavit; and

             (b)  the person administering the oath or affirmation shall in the jurat certify that the affidavit was in his or her belief correctly interpreted to the deponent by the sworn or affirmed interpreter named in the jurat.

1986 c42 Sch D rule 48.07

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Alterations in affidavits

48.08. Any interlineation , erasure or other alteration in an affidavit shall be initialled by the person before whom the affidavit is sworn or affirmed, and unless so initialled the affidavit shall not be used or filed in a proceeding without the leave of the Court.

1986 c42 Sch D rule 48.08

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Service and filing of affidavits

48.09. An affidavit shall be served in the manner provided by rules 6.12, 6.13, 29.05 and 29.06 and filed as provided by rule 29.08.

1986 c42 Sch D rule 48.09

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Cross-examination of deponent of an affidavit

48.10. The deponent of an affidavit to be used on a trial or hearing may be cross-examined and re-examined on

             (a)  an examination for discovery, in the same manner as a party and Rule 30 shall apply with any necessary modification;

             (b)  a trial, under rule 46.03; and

             (c)  a hearing, under rule 29.09(1)(c).

1986 c42 Sch D rule 48.10

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Scandalous, etc., matter in affidavit

48.11. The Court may order any matter that is scandalous, irrelevant or otherwise oppressive to be struck out of an affidavit.

1986 c42 Sch D rule 48.11

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Use of defective affidavit

48.12. With the leave of the Court, an affidavit may be used in evidence and filed notwithstanding any irregularity in the form thereof or of the certificate on any exhibit.

1986 c42 Sch D rule 48.12

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Proof of signature and seal of functionary taking affidavit

48.13. An affidavit, purporting to have affixed or impressed thereon the signature, seal or stamp, if required, of a person authorized by The Evidence Act or any other Act of the province to administer oaths or affirmations in or out of the province, shall be admitted in evidence without proof of the signature of, or the seal or stamp used by, the functionary, or of his or her official character.

1986 c42 Sch D rule 48.13

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Use of affidavit in subsequent applications

48.14. An affidavit that has been used and filed in a proceeding may be used on any other application in the proceeding.

1986 c42 Sch D rule 48.14

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Filing of affidavits

48.15. (1) Every affidavit shall be filed with the Court before an order is issued in a proceeding.

             (2)  When an affidavit has been filed, a copy thereof may be used in a proceeding.

1986 c42 Sch D rule 48.15; 36/14 s60