Policy on Affidavits
What is an affidavit?
An affidavit is a written declaration or statement of facts, confirmed by the oath or affirmation of the person who is making the affidavit in the presence of an individual who has the authority to administer oaths and affirmations. The person making the declaration or statement of facts attests that the information contained in the affidavit is true.
When is an affidavit used?
The Public Service Employment Act gives the FPSLREB the power to accept affidavit evidence. A member of the PSLREB can direct that certain witnesses provide their evidence through an affidavit in circumstances when, for example, the evidence relates to character evidence or is considered to be circumstantial. PSLREB hearings are usually scheduled for two days, the purpose of using affidavit evidence is to better manage the hearing time.
Will the affidavit evidence have as much weight as oral testimony?
Yes. Affidavit evidence is equal to oral testimony. In cases before the FPSLREB, the witness providing affidavit evidence will still be required to attend the hearing, either in person or via telephone to be cross-examined on the information provided in the affidavit. The party calling that particular witness will then have the opportunity to conduct a re-examination of the witness.
Is it better to have witnesses testify in person?
Not always. Often writing out the facts in an affidavit results in evidence being presented in a more organized and clear fashion. It is, however, preferable to have key witnesses testify in person, because their testimony is directly related to the core of the complaint. For example, the complainant, an assessment board member or an expert witness would be best to testify in person. The complainant and the assessment board member were directly involved in the appointment process and are able to speak directly to the events that transpired, whereas the expert witness needs to be qualified as an expert by the member at the hearing.
Witnesses who do not provide evidence directly related to the complaint, can provide their evidence by way of an affidavit. For example a witness who provides character evidence, (i.e. the purpose of the testimony is to establish that the complainant is a hard worker, a good person, etc.) or circumstantial evidence (i.e. a co-worker testifies that he has observed discrimination in the work place). Character evidence and/or circumstantial evidence are used to support the party's case.
Witnesses who will be giving similar evidence or testifying about the same issue, can also provide their evidence by way of an affidavit.
Can more than one affidavit be submitted in a hearing?
Yes. The member presiding the pre-hearing conference will determine which witness(es) should testify by affidavit.
Content of an affidavit
An affidavit must be in writing, and must contain the following information:
- the name of the proceeding to which it relates;
- the name and work address of the person making the affidavit;
- the title or position of the person making the affidavit;
- a statement that the person making the affidavit swears or affirms that the contents of the affidavit are true to the best of his or her knowledge;
- a concise statement of each of the facts relevant to the case (each fact should be set out in a separate paragraph, and should be very explicit).
Persons filing an affidavit may use the Form provided by the FPSLREB for this purpose.
The affidavit must be sworn or affirmed and signed in the presence of an individual who has the authority to administer oaths and affirmations (e.g. a lawyer or a Commissioner for taking oaths and affirmations).
How long should an affidavit be?
An affidavit in the course of a FPSLREB hearing should be limited to a few pages. The member presiding the pre-hearing conference may set a page limit for the affidavit.
Where can I find a commissioner for taking oaths or a notary public?
The FPSLREB does not offer the services of a commissioner for taking oaths or a notary public.
You may wish to consult a telephone directory to locate a lawyer, a notary public or a commissioner for taking oaths. You can also contact a community legal clinic or inquire with your union or at your local municipal office if there is someone there authorized to swear or affirm your affidavit. Some government offices such as Service Canada may also offer the services of a commissioner for taking oaths.
Where to send affidavits
Affidavits must be sent to the parties attending the hearing as well as to the FPSLREB on the date instructed by the member conducting the pre-hearing conference.