Perell J. discusses permissible scope of cross-examination on affidavits

In Ontario v. Rothmans Inc., 2011 ONSC 2504 (CanLII), Mr. Justice Paul Perell has analyzed in depth the proper bounds of cross-examinations on affidavits. He allowed an appeal from a ruling by Master Donald Short, in which the Master had ordered the defendants to attempt to retrieve records going back 40 to 50 years, about which the plaintiff had questioned those defendants’ deponents on their cross-examinations.

This lawsuit, which Perell J. described as a “humongous action”, is a claim by the Ontario government against fourteen tobacco companies, both domestic and international. The damages sought total $50 billion, representing health care costs for the treatment of tobacco-related disease. The government had prepared the ground for its lawsuit by passing the Tobacco Damages and Health Care Costs Recovery Act, 2009. The statute was made retroactive.

The lawsuit is still at a procedurally early stage. Several of the foreign defendants brought a motion, challenging the jurisdiction of the Ontario courts to entertain this action against them. In support of that motion, affidavits were sworn on behalf of the moving parties, basically to the effect that those companies had not carried on business in Ontario, were not incorporated here and owned no property in this province. Counsel for the Crown cross-examined. The deponents were asked to look for and produce a number of documents that the Crown alleged were in their possession. Most of the documents evidently dated back to the 1950’s, 1960’s and 1970’s. The defendants refused, arguing that the cost of looking for these documents was disproportionate to their value in the suit and that they were under no obligation to undertake to do so on a jurisdiction motion.

A refusals motion was brought before Master Short and he ordered the defendants to make efforts to retrieve the documents sought by the Crown. It was his view that in light of the wording of the Tobacco Damages and Health Care Costs Recovery Act, 2009, the court hearing the jurisdiction motion should have as much information as possible. The defendants ought to be required, he thought, to look for all documents that might be relevant. He rejected the defence argument, that millions of pages of documents would have to be searched, saying that “[w]hile it perhaps is possible that corporations the size of these defendants may only have un-indexed, paper filing cabinets, it is more likely in my view that modern document management systems may well be available to assist and facilitate the searches directed”.

Justice Perell came to the opposite conclusion and allowed the defendants’ appeal. He felt that in making the ruling he had, the Master had moved from an adversarial to an inquisitorial approach to the lawsuit.

Justice Perell undertook a lengthy and detailed analysis of the nature of cross-examination on an affidavit, in which he compared and contrasted it with examinations for discovery and cross-examination at trial. Although this litigation is quite exceptional, His Honour’s observations regarding the permissible scope of cross-examination on affidavits filed on interlocutory motions will have broad relevance in other cases.

Justice Perell noted that unlike examinations for discovery, cross-examination at trial does not involve the giving of undertakings. He also observed that while undertakings voluntarily given on a cross-examination on an affidavit will be enforced by the court, it was not entirely clear to what extent a deponent can be compelled to give an undertaking on a cross-examination: “If the deponent confines his or her evidence to personal knowledge, there is no apparent basis to compel him or her to obtain information about what others know about the case.”

From his review of the authorities, Justice Perell distilled the following principles governing examinations for discovery and cross-examinations on affidavits:

Examinations for discovery

  • The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings.
  • The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery is known colloquially as a “fishing expedition” and it is not permitted.
  • Under the former case law, where the rules provided for questions “relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy.The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” which suggests a modest narrowing of the scope of examinations for discovery.

  • The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds.
  • The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue.
  • The witness on an examination for discovery may be questioned about the party’s position on questions of law.

Cross-examinations on affidavits

  • The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery.
  • A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure.
  • The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion.
  • The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence.
  • If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the court.
  • The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion.
  • A question asked on a cross-examination for an application or motion must be a fair question.
  • The test for relevancy is whether the question has a semblance of relevancy.
  • The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent.
  • The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information.
  • The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed.

In the result, His Honour held that the Master had erred by treating the proper scope of questions on a cross-examination as being the same as that on an examination for discovery when in fact, it is narrower. Also, he thought that the Master had wrongly ignored the “difficulties inherent with the passage of time”.

Finally, Justice Perell said that principle of proportionality meant less procedure, not more, and that the Master’s decision had not recognized that principle, now enshrined by the amendments to the Rules.

While few of us will ever be involved in litigation that resembles this case, Justice Perell’s analysis can serve as a “primer” on the scope of examinations for discovery and cross-examinations in other civil cases.



This entry was posted in Discovery, Practice and Procedure. Bookmark the permalink.