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Civil Litigation - Affidavits - Cross-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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