Notice For Frustrated Cross-Examiners

All too often, affidavits for motions or applications are sworn by lawyers or law clerks based on information from others. These affidavits will sometimes attach entire reports by experts and the grounds for the motion or application will include the opinion set out in the attached expert report. This is frequently seen to shield the author of the report, namely the expert, from cross-examination and, what may well be, the key grounds supporting or disputing the request made in the motion or application from being challenged by way of cross-examination. To proceed with an examination to ask questions of someone who has no personal information can be a good way to waste your time and your client's money.

Litigators are very familiar with the provisions of Rule 39.02 which permit, in most cases, cross-examination of an affiant on an affidavit sworn in support of a motion or application. What is not often pursued, and perhaps frequently forgotten, is Rule 39.03 which permits a party to have a summons issued and served on a witness in order to have that witness attend for an examination to obtain evidence in advance of a motion or application. The witness does not need to be a party nor an affiant of an affidavit in support of the application or motion. The witness can be the expert who prepared the report attached to the affidavit served in support of the motion or application.

No leave of the court is required to have the summons issued, however, an opposing party can bring a motion to quash the summons. The courts have fairly consistently held for the past three decades that such a summons should stand and the examination should proceed if: (i) the evidence that is to be adduced is relevant to the issues raised in the motion or application; (ii) the witness served with the summons has such evidence; and (iii), the examination would not amount to an abuse of process. See Re Canada Metal Co. Ltd. et al. and Heap et al. (1975), 7 O.R. (2d) 185 (ON C.A.) and more recently, CanWest MediaWorks Inc. v. Canada (Attorney General), 2007 ONCA 567 CanLII (ON CA).

The courts will typically require that an examination pursuant to Rule 39 be limited to facts relevant to the issues raised in the motion or application. The scope of the examination will be determined based on a review of both the nature and the grounds for the motion or application. See Elfe Juvenile Products Inc. v. Bern, [1994] O.J. No. 2840 (Ont. Div. Ct.).

With the law being so settled on...