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Evidence - Cross-Examination

. Interhealth Canada Limited v. O’Keefe

In Interhealth Canada Limited v. O’Keefe (Ont CA, 2023) the Court of Appeal considers judicial practice when the issue of limitations to be placed on cross-examination arises:
[52] Counsel had cross-examined Mr. O’Keefe over two days and had cross‑examined Mr. Schwartz for approximately a half-day. When appellant’s counsel had 35 minutes left to cross-examine Mr. O’Keefe, he inquired whether it was a “hard stop”. The trial judge confirmed that it was. In the case of Mr. Schwartz, the trial judge simply told appellant’s counsel that his time was up.

[53] I begin by noting that deference is owed to trial management decisions. Judicial resources are scarce and were particularly scarce during the COVID-19 pandemic. Trial management is an essential and versatile tool. That said, it must be exercised carefully. “The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency”: R v. Samaniego, 2022 SCC 9, 412 C.C.C. (3d) 7, at paras. 22, 25.

[54] Where counsel seeks an extension of the time agreed or fixed for cross‑examination, and their cross-examination has not been unduly repetitive, rambling, argumentative, misleading or irrelevant, it is prudent for a trial judge to inquire as to what additional questions counsel wishes to ask, and how long doing so might take before cutting counsel off. This brief exchange may need to take place in the absence of the witness. Such an inquiry should not create delay. Armed with the responses to these questions, the trial judge will be able to quickly assess the relevance and materiality of counsel’s proposed line of further inquiry and determine whether a brief extension is reasonable and warranted in all the circumstances. Whether the pace of counsel’s cross-examination has been slowed by unreasonable interjections of opposing counsel may be a relevant factor in deciding whether a brief extension is appropriate.

[55] Here, the trial judge did not ask counsel for the appellant what additional questions he wished to ask Mr. O’Keefe or Mr. Schwartz, and how long doing so might take. She may have concluded that trial counsel had failed to focus and get to the point, as she had cautioned him to do, but she made no comment to that effect.

[56] In any event, counsel did not put on the record what additional lines of inquiry he sought to pursue, and why. While counsel says it was clear that nothing he said would change the trial judge’s mind, he nonetheless should have done so. Nor did the appellant outline in its factum on appeal what those additional lines of inquiry were, and why he was prejudiced by his inability to ask further questions.

[57] When pressed at the hearing of the appeal, counsel says that he wished to further press Mr. Schwartz, also a former director of the appellant, on why Mr. O’Keefe accelerated his resignation from December 31, 2005 to October 31, 2005. Whether Mr. O’Keefe’s resignation was prompted or influenced by a wish to acquire the “opportunities” at issue for CHNI was an issue at trial. As noted above, the trial judge accepted Mr. O’Keefe’s evidence about the reasons for his resignation, including that he accelerated his resignation because he did not support the appellant’s pursuit of the “Wave 2” projects in the UK. In his cross‑examination, Mr. Schwartz testified that his understanding was that Mr. O’Keefe accelerated his resignation because of the issues related to the “Wave 2” projects.

[58] The trial judge noted that Mr. O’Keefe’s concern was shared with the other Canadian directors, including Mr. Schwartz. Mr. Schwartz and another director stated in emails that they would resign in solidarity with Mr. O’Keefe. Three other directors resigned around the same time as Mr. O’Keefe.

[59] In the circumstances, I am not persuaded that the appellant was prejudiced by his inability to further press Mr. Schwartz on this issue.

[60] As to its cross-examination of Mr. O’Keefe, the appellant submitted that it would have pursued with Mr. O’Keefe why his June 2005 resignation letter did not mention the concern with Wave 2 projects[1] and asked more questions about the letter he sent to HBS on behalf of HIH on October 20, 2005. While the appellant had explored the interests of Dr. Muhairi in the Cromwell Opportunity, the appellant says it wished to explore this further, and also to further cross-examine Mr. O’Keefe on inconsistencies in his evidence.

[61] Counsel for the appellant did not explain what he hoped to elicit from these further questions, besides somehow casting doubt on Mr. O’Keefe’s credibility, and what role they would have had in the trial judge’s reasoning process. Again, I am not persuaded that the appellant was prejudiced.


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