Duhaime's Law Dictionary


Examination on Affidavit Definition:

An examination under oath of the deponent of an affidavit.

Related Terms: Examination for Discovery, Affidavit

Also known as cross-examination on affidavit. See, also, Lloyd Duhaime's piece entitled Cross-Examination on an Affidavit: Chambers On Trial.

In Ed Miller Sales & Rentals v. Caterpillar Tractor, Justice Feehan of the Alberta Court of Queen’s Bench reviewed several previous cases and offered this amalgam of the law:

"It is clear to me that the examination (on an affidavit) may be as searching and thorough as the party's cross-examination of the witness at the discovery could be. However, it must not extend to matters wholly immaterial or irrelevant to the affidavit. This does not mean to say that the examiner is limited to the four corners of the affidavit but that the questions must be relevant and material to the issues arising from the affidavit....

"(A) cross-examination on an affidavit is for the purpose of testing the truth of he statements in the affidavit.... It seems obvious, therefore, that, for the purpose of testing the truth, the cross-examiner may go further afield in his questions.

"There are of course limits to which the questioner can go.... When it sufficiently appears that there is a real defence, depending on questions of fact or involved questions of law, the purpose has been accomplished and the examination should end.

"(T)he reason for the examination on the affidavit is to assist the court to decide the application, and questions and answers which would not assist the court and would not be relevant to the determination of the issue on the motion nor question the truth of the statement contained in the affidavit or the credibility of the affiant and are obviously questions that should be put on examination for discovery should not be allowed."

In Alberta v Leahy, Justice Mason of the Alberta Court of Queen's bench adopted these words to distinguish the examination on affidavit from the examination for discovery:

"Cross-examination is not an examination for discovery and differs from examination for discovery in several important respects. In particular: (a) the person examined is a witness not a party; (b) answers given are evidence not admissions; (c) absence of knowledge is an acceptable answer; the witness can not be required to inform him or herself; (d) production of documents can only be required on the same basis as for any other witness i.e. if the witness has the custody or control of the document; (and) (e) the rules of relevance are more limited.

"Thus, cross-examination on an affidavit should not be utilized as a gate into the field of examination for discovery; discovery has broader purposes and the concomitant broader scope of relevancy in that context is well-settled."

In an 1855 English case, Clarke v Law, Justice W. Page Wood had before him an application to have an affiant cross-examined before an official of the Court then known as an Examiner. Curiously, the affiant, once faced with an application to be cross-examined on his affidavit, sought to withdraw the affidavit!

"When a party gives notice that he intends to use at the hearing an affidavit made by him, he is both a party and a witness.... He has propounded himself as a witness and cannot be allowed, if not cross-examined, to use his affidavit, but if threatened with cross-examination to withdraw it. Having tendered himself as a witness, he is bound to submit to cross-examination."

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