This article deals with challenging affidavit evidence in the context of a hearing which does not normally accommodate the oral evidence of witnesses in court.

"The necessity of testing by cross-examination as a vital feature of the law.... It is beyond any doubt the greatest legal engine ever invented for the discovery of truth. Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure."
The 1974 edition of Wigmore on Evidence.

Introduction

In many jurisdictions, the different types of legal proceedings must either follow a summary form of proceeding - no trial, and evidence is introduced by way of affidavit - or oral evidence before a court, the typical trial process.

The nomenclature is really unfriendly to lay litigants. For example, in the Canadian jurisdiction of British Columbia, a proceeding in which evidence is given by way of affidavit is called an originating application and the main document which replaces a statement of claim and in which the applicant must make his or her allegations of fact and law, is called a petition or an application.

Affidavit in a canThe better known track of a trial, including the evidence of witnesses who testify in open court, is started by a writ of summons and soon followed by a statement of claim or just simply, the claim.

The petition route has the advantage of expediency but the disadvantage of summary disclosure rights.

In some cases, a litigant may be able to choose between the two processes but that is rare. Normally, the Rules of Court will dictate one or the other process in any particular case.

In other cases, even though a matter proceeds by way of a claim intended to be resolved by oral evidence in open court, one of the parties may pre-empt that by seeking to have the matter resolved in a summary trial. That forces all parties to condense their evidence into affidavit form.

The Shortcomings

Affidavits are notoriously suspect, primarily because they do not give the court an opportunity to watch the witness give his or her evidence nor do they allow for cross examination.

Because of this, most common law courts will allow a litigant caught in a petition-track to cross-examine an affiant. As Justice Macdonald said in Patterson v Hodges:

"...every facility ought to be allowed to a defendant, when an application is made for speedy judgment, to elucidate the facts in his favour and to elucidate those facts, if he can, from the plaintiff's own mouth."

Usually, a party have to file their own affidavits before they can do this.

In Royal Bank v Jones, Justice Chamberlist summarized the law:

"... the discretion of this Court in allowing cross-examination on affidavits must be exercised on proper principles and in the normal course will be ordered where the deponents affidavit contains facts that are in issue. However, in keeping with the exercise of discretion, there is also the general rule that a party must file its affidavit before he or she can cross-examine a deponent on the opposing side...."

Each set of court rules may differ from another. For example, the Rules of Civil Procedure in Ontario provide:

"A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application."

In Sherwood Co-op, a Saskatchewan Court of Appeal decision of 1969, Justice Culliton wrote:

"Under the (Saskatchewan Rules of Court), there is no inherent right to cross-examine on an affidavit in an interlocutory application. It is within the discretion of the court to grant or refuse such an application. The practice is the same in England."

In the Province of British Columbia, leave of the court is required:

"On an application, evidence shall be given by affidavit, but the court may order the attendance for cross-examination of a deponent, either before the court or before another person as the court direct...."

But note these words of Justice Bouck in Ulrich v Ulrich at ¶48-49:

"[A] court may order a deponent to attend for cross-examination before a judge or another person. Rarely does the examination take place before a judge. If it happens at all, it may occur before a court reporter who produces a transcript. For the cross-examination to have any useful meaning, it should be done before the Chambers judge who hears the application. However, there is no administrative machinery in place to ensure this will happen.

"If an out-of-court cross-examination is held before a court reporter, a party may present the transcript of the examination to the Chambers judge at the application's hearing. In most instances, it will have little persuasive value. This is because the Chambers judge was not present to observe the deponent's demeanour when the cross-examination took place. A Chambers judge can seldom assess a deponent's credibility just by reading an affidavit or a copy of the cross-examination transcript."

In Brown, the Court wrote of a practical presumption in favour of allowing cross-examination of affidavit when requested and if the allegations of fact contained within the affidavits are in dispute:

"Clearly, and it has been long so held, the judge has a discretion which he must exercise on proper principles as to whether or not cross-examination should be directed on the application of a party. There is no question that in the normal course where the affidavit on which the cross-examination is sought includes facts that are in issue, the deponent will so be ordered to attend if application therefor is sought. But the circumstances may be such that the judge may properly exercise his discretion to refuse such an application...."

In Auton, Justice Allan noted that:Affidavit Opener

"Those orders, which are discretionary, may be made in appropriate summary proceedings when the goals of efficiency and economy are subject to the need for a more thorough factual investigation in the interests of justice."

The common law disdains the evidence of an affiant who refuses to subject to cross-examination on his or her affidavit. Halsbury’s Laws of England:

"Any party is entitled to cross-examine any other party who gives evidence and his witnesses, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination."

In the United States, Justice Lopes wrote in Allen v Allen:

"It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination."

That statement of the law was accepted in Canada (RCMP v Rees) as "an accurate statement of the common law applicable in this province today."

In Blaise, Justice Sachs wrote:

"As a matter of first impression it seemed to me – and I had no hesitation on this point – to lead to the conclusion that where a party is denied the important right to cross-examine a witness whose answers on cross-examination might affect the result, that constituted both a substantial wrong and a miscarriage of justice...."

In H.B. Haina, Justice Anderson reiterated the significant consequences to an affiant who refuses to be cross examined on her affidavit:

"In my opinion, the affidavit of Haina should not be admitted because the respondent has not had an opportunity to cross-examine Haina. While Haina is not a party to these proceedings, the principles applicable in those cases where a party fails to submit himself for cross-examination are applicable. The basis for rejecting the affidavit is that there is no means of confronting the deponent or of ascertaining the truth of the statements contained in the affidavit or the context in which the statements were made. Even if the affidavit is technically admissible, evidence of this nature is of so little weight that it cannot materially assist the party relying on it."

Once an affiant has been cross-examined on his or her affidavit, the transcript can be used in Court.

The Boogeyman

Once arrangements are made to examine an affiant, the process is akin to an examination for discovery and occurs outside the courthouse and without a judicial chaperone.

The real bogeyman for lay litigants would not be so much in obtaining in order to cross-examine an affiant, provided affidavits have been filed by both sides and the facts are clearly in dispute.

The problem for lay litigants and even for lawyers when facing deep pocket adversaries, is a tremendous amount of crap that occurs during the cross-examination. As the British Columbia Court of Appeal mused at ¶18 of Allarco:

"Examination for discovery ... can ... be a procedure of oppression in the hands of some counsel who seem to have unlimited time and resources."

Many lawyers get restless, excited, hostile or pompous when they must sit on their hands and keep their mouths shut during the cross-examination of their client in the absence of the court and in the presence only of a stenographer court reporter. Many act up when they face an unrepresented party at an examination for discovery and pull stunts they would not pull were a qualified lawyer representing the lay litigant conducting the examination. The lawyer know that only words show up on a transcript, not the tone - or the interruption which drips with disrespect and with every design to intimidate or throw-off a focussed lay litigant trying to conduct an examination on an affidavit.

A lay litigant can easily be unnerved by the rude and condescending squawking of a lawyer during an examination on affidavit (which is in many ways the same as an examination for discovery except that the questioning must relate to the affidavit, as opposed to allegations made in a statement of claim). Having attended many examinations for discovery, it has been observed, far too often, that opposing lawyers cannot just sit still, and will make a point of fluttering their peacock feathers in an effort to unnerve the other side or embolden their client.

A lay litigant who conducts an examination on affidavit must be prepared to weather the storm of the badgering lawyer, to quietly, politely and persistently shut them up if the interruptions are persistent, to be prepared to take the matter to court if necessary, to have the other lawyer muzzled.

Note the words of the Court in Di Giacomo who was seized with an application to require the answering of certain questions which the deponent on an affidavit had refused to answer:

"(T)he authorities indicated that a question to be proper must be either relevant to the issue in respect of which the affidavit is filed, or be directed towards questioning or contradicting the accuracy of the statements set out on the affidavit.... It appears that at trial questions dealing with bias are admissible. I see no real reason why such questions should not also be admissible on a cross-examination on an affidavit and I know of no cases dealing squarely with this matter."

If a document is referred to in an affidavit without being exhibited, any privilege may be waived and the examiner may be entitled to demand that document of the affiant.1

Summary

  • The Rules of Court in a given jurisdiction may allow cross-examination of the signatory of an affidavit as of right: without need to ask a Court to authorize it. Use it!
  • Even in those jurisdiction that require court leave, they are generally allowed if there is a conflict on the facts and if the parties have filed all their affidavits.
  • Once engaged, the battle has begun: be alive to the games an adversarial system encourages lawyers to play.

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