Trustee’s report permitted in lieu of affidavit

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As a general rule, all evidence in court proceedings must be presented either by witness testimony or by sworn affidavit. In a recent Ontario court decision, an exception was made for a trustee’s unsworn report (Farber v. Goldfinger, 2011 ONSC 2044).

The trustee of a bankrupt group of companies was responding to a court application to replace them with another trustee in bankruptcy, and filed a report with the court, rather than an affidavit. The other side objected, and sought to have the report struck from the report. The court rejected the motion to strike the report, and allowed it into evidence. The court pointed out that: unsworn reports of trustees and receivers are frequently accepted by the court in other contexts; several sections of the Bankruptcy and Insolvency Act specifically mandate the filing of a report by the trustee; and trustees in bankruptcy are officers of the court, and caselaw suggests that reports of court officers are admissible evidence even when not sworn.

Although the trustee in this case was successful in obtaining admission of its report, we would still recommend filing an affidavit in such a situation, if only to avoid a similar dispute here in BC.

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