Master MacLeod ruminates about proper practice in cross-examinations

Master Calum MacLeod released a decision recently that has some useful practice tips about cross-examinations on affidavits.

The case is Dumais v Hobbs, 2015 ONSC 5643 (CanLII). Without getting into detail about the facts, there was an action and an application that both arose out of the acquisition of a business. Numerous entities, including a law firm, were involved as litigants.

A motion was brought for the consolidation of the action and the application and evidence was filed in relation to that motion. The parties then undertook cross-examinations on affidavits pertaining to the motion and, a month later, separate cross-examinations on the affidavits that had been filed on the application itself. The motion that Master MacLeod was dealing with here had to do with the applicant’s refusal to answer certain questions on both cross-examinations.

Master MacLeod was very dismayed by what were apparently lengthy and rancorous exchanges among counsel, on the record, in the course of the cross-examinations. (He was too discreet to identify the offenders.) The Master was of the view that there were several misconceptions about the cross-examination process that had led to these exchanges and his reasons sought, in part, to clear those up, both for the lawyers in that case and for the profession generally.

First, he said that there can be differences in the permissible scope of cross-examinations for purposes of motions and applications. Examinations for discovery can be different too. His main point was that the proper scope of the examination is dependent upon context. He referred to the decision of Justice Perell in Ontario v. Rothmans 2011 ONSC 2504 (CanLII); (2011) 5 C.P.C. (7th) 512 (S.C.J.), probably still the leading case on this subject. Master MacLeod was critical of the excessively narrow approach to scope that had been taken in this case, where a witness had refused to answer questions on the first cross-examination (on the consolidation motion), only to then answer the same questions on his cross-examination the following month, in relation to the application itself. Master MacLeod was of the view that the two parts of the litigation (the motion and the application) were not water-tight compartments: the merits of the application itself were relevant to the issues to be decided on the consolidation motion. He felt that the approach that had been followed, apart from being wrong, was also inefficient in that it had resulted in two cross-examinations when one would have sufficed.

The Master felt that even though Rule 29.1 [discovery plan] does not apply to cross-examinations, the parties had been remiss in not engaging in a collaborative planning exercise for the conduct of the examinations:

I observed at the hearing that there appeared to have been an unfortunate lack of consultation, collaboration and planning concerning the two sets of cross examinations. Since it was known in May that there would be cross examinations on the main affidavit evidence in June and as it was quickly apparent there might be a difference of view as to the appropriate scope of questioning, much of the unfortunate squabbling on the record might have been avoided had there been a more collaborative advance dialogue between counsel. It was suggested to me that there was no obligation to do so because Rule 29.1 does not apply to cross examinations on affidavits. I cannot let that submission pass without comment.

His comment was that notwithstanding the absence of a specific provision in the Rules, counsel are obliged and expected “to seek means to dispose of litigation in the least expensive and most expeditious manner and to engage in procedural collaboration whenever it can be done without sacrificing the interests of the client.” It was quite clear that he will expect such an approach to be followed in future in the case before him and, probably, in other cases too. (I am to appear before him tomorrow on a case conference to deal with planning and scheduling issues in a commercial lawsuit, so I will try to bear his comments in mind!)

As often happens in commercial contract cases, there were apparently many questions posed in the cross-examinations in this case about (a) the circumstances surrounding the making of the written contracts; and (b) the witness’ understanding of the meaning of the documents. Both sorts of questions had been objected to, some on the basis of the parol evidence rule and others because the questions supposedly amounted to asking the witness for a legal opinion.

The Master noted that (a) and (b) above are somewhat different things. He went on to find that both bases for objections (parol evidence rule and the suggestion that the question called for a “legal opinion”) had very limited validity. He referred to the Supreme Court’s decision in Sattva Capital Corporation v. Creston Moly Corp. 2014 SCC 53 (CanLII); [2014] 2 S.C.R. 633 as authority for these propositions: (1) “there are myriad exceptions to the parol evidence rule”; (2) “parol evidence will be admissible if the entire contract is not in writing”;  and (3) “almost any evidence is admissible if it is for the purpose of proving the surrounding circumstances as an interpretive aid”.

Turning to the other common objection (question calls for a “legal opinion”), it was clear that the Master felt that this is often illegitimate:

That is simply misguided. If a party could never give evidence about the meaning of a contract because it would require a legal opinion then firstly few contracts would be enforceable and secondly the legal opinion would always be in issue with a corresponding waiver of privilege. It is proper to ask a witness to confirm that he read and understood the documents and it is reasonable to ask what he understood the effect of the document to be when he signed it. It is also proper to ask him what his current position is concerning the meaning of the documents in issue. Of course the witness may well answer that he is incapable of understanding the document he signed and he relies upon his lawyer but that cannot be known until the question is answered. Asking for his understanding about the meaning is not the same as asking about subjective intent and it is not asking for an expert opinion.

(An even more common objection in this situation, in my experience, is along the lines of, “the document says what it says”. Although there is no indication in Master MacLeod’s reasons that such an objection was raised in this case, it seems fairly clear that if there had been, it too would have received short shrift.)

The Master summed up his views as follows:

In conclusion, it is an error to give a blanket refusal to answer any questions about the intention of the parties in entering into a contract. It is an error to give a blanket refusal to answer any questions about interpretation of documents. That is not to say that all questions must be answered. There may be questions that are improper because they are unfair questions or because they touch on privilege or are irrelevant for other reasons. But the parol evidence rule is not sufficiently clear or sufficiently rigid to form the basis of a proper refusal at the cross examination stage.


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