Legal Blog

Jurat

The validity of liens can be attacked for a variety of reasons. One reason relates to the affidavit by which a claim for lien is verified as being correct. This reason was dealt with in Zemelman v. Feder, a 2001 decision of the Ontario Divisional Court.

Problem 

The lien claimant, who obviously did not use a lawyer, registered a claim for lien. He signed the affidavit verifying the correctness of the lien. However, the portion of the affidavit known as the jurat, which is normally completed by a commissioner of oaths attesting to the fact that the lien claimant deposed that the information was correct, was left blank. Accordingly, on its face, the affidavit was incomplete and the statutory provisions for validity were not fulfilled.

The owner moved to discharge the lien. 

The lien claimant, in response to the motion, provided an affidavit from a commissioner stating that the affidavit of verification had indeed been sworn before the commissioner but, due to inadvertence, the commissioner forgot to sign the jurat.

Strict Adherence 

The motions judge noted that the jurat was a pivotal portion of an affidavit and, without its completion, the purported affidavit was not an affidavit. Accordingly, he discharged the lien. The lien claimant appealed to the Divisional Court.

Wishy Washy 

The Court decided that the important aspects of an affidavit were the body of the affidavit and the signature of the declarant. The jurat was merely evidence that the “affidavit is true and sworn by the declarant.” Given this finding, the Court set aside the decision of the motions judge.

This is all very nice but it seems to make a mockery of the jurat. If a jurat is held to be unnecessary, why bother to complete it?