What is the legal test for withdrawing an affidavit?

Nova Scotia, Canada


The following excerpt is from Gallagher Holdings Ltd. v Unison Resources Inc., 2017 NSSC 248 (CanLII):

In Gill v. Gill (2004) B.C.S.C. 518, Motions Master Brine reviewed a number of authorities and he concluded at para. 36: 36 In summary, it appears that there is discretion in the court to order that affidavits filed in the court file may, upon application, be withdrawn. Among the factors to be considered by the court upon such an application are the following: 1. Was the affidavit filed by mistake? 2. Has the affidavit been used, in the sense of having been before the court, during the course of considering an application? 3. Is there a pending application before the court for which a party has indicated it intends to rely upon the affidavit? 4. Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevant information or the ability to cross-examine the deponent? 5. Would the other party be prejudiced in any way by the withdrawal of the affidavit? 6. Are there policy considerations which would militate against a withdrawal of the affidavit? 7. Would the administration of justice be adversely affected by the withdrawal of the affidavit? [Emphasis added]

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