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Civil Litigation - Affidavits - Cross-Examination. Rockcliffe Park Residents Association v. City of Ottawa
In Rockcliffe Park Residents Association v. City of Ottawa (Div Court, 2024) the Divisional Court allowed an motion to strike affidavits in the JR record, here where a residents' association applied to challenge the City's "issuance of a heritage permit under section 42 of the Ontario Heritage Act".
Here the court considered motions to strike or limit cross-examination on affidavits (on motions or applications) [under R39.03], here in a JR application:[62] The Applicant’s position is that Rule 39.03 of the Rules of Civil Procedure permits a party to an application for judicial review to subpoena a witness if they have relevant evidence regarding the issues the Court must decide. This right exists in all Applications, including those for judicial review.[20]
[63] Establishing that there is a valid basis for the examination is conceptually distinct from the scope of the examination in my view. Therefore, I will examine each issue separately.
[64] The Ontario Court of Appeal provided useful guidance on the right to conduct a r. 39.03 examination in relation to an issue raised in an application for judicial review. In Payne [SS: 'Payne v. Ontario Human Rights Commission, 2000 Canlii 5731'], the applicant challenged a decision of the Ontario Human Rights Commission (the Commission) dismissing her human rights complaint. In her application for judicial review, the applicant alleged that the Commission dismissed her complaint on the basis of extraneous factors, such as cost or other strategic concerns. The Commission provided no reasons for its decision to dismiss the applicant’s human rights complaint and therefore, she had no way of knowing the real reasons for the dismissal. However, affidavit evidence provided on the motion for an order for the examinations suggested that the Commission may have relied upon such considerations in dismissing the complaint.
[65] In Payne, Sharpe J.A. stated, for the majority, that there is a prima facie right to conduct a r. 39.03 examination in relation to an issue relevant to the application for judicial review, but that the right is subject to the following limits:(i) No Right of Discovery - There is no right to examination for discovery on an application for judicial review.
(ii) Deliberative Secrecy - An examination should not be used to delve into the actual decision-making process of the tribunal. However, this principle must be balanced with the right of the citizen who has been affected by the tribunal's decision to effective judicial review.
(iii) Factual foundation – Sharpe J.A. held that an examination should be permitted in the context of an application for judicial review when the party seeking the examination has presented “some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed”.[21] ....
[72] The Ontario Court of Appeal’s decision in Payne also provides guidance on the scope of a Rule 39.03 examination in the context of an application for judicial review.
[73] The majority in Payne noted that in rendering a decision on the right to examine in the context of the judicial review of a Commission decision, one had to bear in mind that the Commission had been entrusted with exclusive jurisdiction to determine fundamental human rights. That context is very important. As the majority stated: “the rights conferred by the Code are fundamental, quasi-constitutional rights which embody fundamental values of public policy". For that reason, the majority found that it would be entirely inconsistent with a fundamental human right if the Commission were, as it was alleged, to have dismissed a complaint for reasons of cost or because of “strategic concerns”.[24]
[74] Therefore, the majority permitted the Applicant to supplement the record of proceedings on judicial review with evidence obtained on an examination of two Commission witnesses. However, the Court narrowly circumscribed the scope of those examinations as follows:... the appellant is entitled to examine the Registrar as to what documents, facts, considerations, or recommendations not already revealed by the record filed on judicial review were before the commissioners, to inquire as to whether "strategic factors" formed a basis for the commissioners' decision, and to inquire whether there were any reasons for the determination not revealed in the reasons given the appellant.[25] [75] The complexity of the issues in the present case, the rights affected, and the deliberative process are different from those in Payne. The present application for judicial review does not have an impact on the Applicant’s fundamental human rights. This does not mean that the impugned decision(s) is/are unimportant. However, the Applicant does not have a statutory right to participate in the decision-making process[26] and the process itself does not involve a quasi-judicial exercise of power. These factors should be taken into account in determining the scope of the proposed examinations in the present case.
[76] The Applicant provided a non-exhaustive list of approximately 43 issues that they intended to put to the two witnesses during the examinations. A copy of that list is provided at Appendix A of this decision. Applicant counsel objected to the court’s request that she provide the list, arguing that she had discharged the evidentiary burden of demonstrating that “the individuals they seek to examine likely have relevant evidence”.[27] Nothing further was therefore required. I disagree with the Applicant on this point.
[77] The Court of Appeal clearly stated in Payne that “the party serving a notice of examination may be required to specify the scope of the proposed examination”.[28]
[78] I find that the non-exhaustive list of issues provided by the Applicant essentially amounts to an examination for discovery. It is not proportionate to the nature of the decision-making power in issue, the rights of the parties involved and the complexity of the case. I find that it would be an abuse of process to permit the Applicant to engage in the sweeping inquiry they are proposing.
[79] I am therefore circumscribing the scope of the examination. ... . Renée v. 10887609 CANADA INC.
In Renée v. 10887609 CANADA INC. (Div Court, 2023) the Divisional Court considered an RTA landlord's motion to quash an appeal, focussing on motion evidence from affidavits and cross-examination on the affidavit [under R39.01 and R39.02]:[28] Rule 39 of the Rules of Civil Procedure governs evidence on motions and applications. Evidence is permitted by affidavit by virtue of r. 39.01(1). Affidavits based on information and belief are permitted so long as the source of that information is set out in the affidavit: r. 39.01(4). Rule 39.02 provides the opposing party the opportunity to cross-examine on an affidavit filed in support of a motion, subject to the court’s discretion to refuse an adjournment for that purpose where the right to cross-examine has not been exercise with reasonable diligence. . Volk v. Volk
In Volk v. Volk (Ont CA, 2020) the Court of Appeal considered the latitude that a party has on cross-examination on an affidavit:[10] As Borins J. noted in Moyle v. Palmerston Police Services Board, 1995 CanLII 10659 (ON SC), [1995] O.J. No. 627 (Div. Ct.), at para. 11, “the nature of the relief sought on an interlocutory motion often plays a significant role in determining the proper scope of cross-examination”. This is because the cross-examination is meant to serve the fact-finding needs that the motion requires. Accordingly, as Borins J. affirmed, quoting Gale J. from Thomson v. Thomson, [1948] O.W.N 137 (H.C.) at 138, a person cross-examining on an affidavit is not confined to the four corners of the affidavit but may cross-examine on matters that are relevant to the issue in respect of which the affidavit was filed. Therefore, although the cross-examiner is not free to cross-examine on all matters that touch upon the underlying action, if the cross-examiner has a bona fide intention to direct questions to the issues relevant to the resolution of the motion and those questions are fair, the question should be answered, not refused. This includes questions relevant to credibility determinations that are within the competence of the motion judge, which would include questions intended to expose “errors, omissions, inconsistencies, exaggerations or improbabilities of the deponent’s testimony contained in his or her affidavit”: Moyle, at para. 14.
[11] The motion in this case is for the stay of an order to preserve the disputed asset. A motion for a stay pending appeal engages the same general legal standards from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which are employed in granting interlocutory injunctions, namely, consideration of whether the appeal raises a serious issue, whether the applicant will suffer irreparable harm if the stay is not granted, and the balance of convenience: see Buccilli v. Pillitteri, [2013] O.J. No. 6110 (C.A.), at para. 34 (Gillese J.A., in Chambers). In Moyle, Borins J. noted that because of the nature of the discretionary remedy to grant in interlocutory injunction, the scope of cross-examination for such motions is apt to be broader than in respect of many motions for other remedies: at para. 18. The same is necessarily true of motions for a stay pending appeal.
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