March 4, 2024

A deponent or affiant may be cross-examined on their affidavit sworn in support of or in response to a motion.  If a question on cross-examination is not answered, then it will be deemed a refusal.  The examining party may bring a refusals motion to compel answers to the refused questions should they be maintained.  Sometimes it is thought or assumed that questions on cross-examination must fall within “the four corners of the affidavit”.  This is a colloquial way of referring to the principle that questions must be confined to the evidence given in the affidavit.  However, the scope of cross-examination on an interlocutory motion is broader.  In Volk v. Volk, 2020 ONCA 256 (CanLII) (“Volk”), the Ontario Court of Appeal affirmed the comments of Borins J. in Moyle v. Palmerston Police Service Board, 1995 CanLII 10659 (ON SC) (“Moyle”), at para. 11, “the nature of the relief sought on an interlocutory motion often plays a significant role in determining the scope of cross-examination”.

The litigation in Volk involved an application brought pursuant to the Substitute Decisions Act, 1992, SO 1992 c 30.  The husband of an incapable woman alleged that her house had been improperly transferred by the woman’s daughter, who was her attorney for property. The husband further alleged the daughter was using her mother’s money to fund the carrying costs of the house to the mother’s detriment.  The daughter and granddaughter of the incapable woman did not file responding materials or attend court.  The husband was granted a freezing order and the ability to sell the house.  After the house had been sold but before closing the daughter and granddaughter appealed the order.  They also brought a motion to stay the order pending the appeal arguing in part that they were not properly served with the application record.  A number of refusals were given at the cross-examination of the granddaughter.  A refusals motion was brought by the husband who argued that his position on the stay motion was prejudiced by the refusals.  The Court of Appeal reviewed Borins J. decision in Moyle, who in turn quoted Gale J. from Thomson v. Thomson, [1948] O.W.N 137 (H.C.) at 138, and stated that a person:

“…may cross-examine on matters that are relevant to the issue in respect of which the affidavit was filed. Therefore, although the cross-examiner is not free to cross-examine on all matters that touch upon the underlying action, if the cross-examiner has a bona fide intention to direct questions to the issues relevant to the resolution of the motion and those questions are fair, the question should be answered, not refused. This includes questions relevant to credibility determinations that are within the competence of the motion judge, which would include questions intended to expose “errors, omissions, inconsistencies, exaggerations or improbabilities of the deponent’s testimony contained in his or her affidavit”: Moyle, at para. 14.

In Volk, the Court noted that a motion seeking a stay of an order is akin to an injunction and the same test therefore applies.  Questions on cross-examination which seemed to go to the issues in the underlying application were refused.  But the Court found those questions were also relevant to the resolution of the motion to stay and must be answered.

When conducting a cross-examination of evidence given on an interlocutory motion, counsel would be wise to broaden the scope of the examination to issues relevant to the resolution of the motion, including asking questions to get at permissible areas of credibility.  Likewise, counsel for the deponent/affiant would be wise not to refuse proper questions on the basis that they must be confined to the four corners of the affidavit.