A recent decision by the Superior Court of Justice has brought some clarification to the scope of cross-examinations on affidavits filed for motions for summary judgments, says Toronto civil and commercial litigator Patrick Summers.
Mars Canada v. Bemco Cash & Carry, 2014 ONSC 4172 (CanLII) is an appeal of Master Barbara McAfee’s December 2013 order requiring Mars to answer questions the manufacturer thought were “irrelevant, went beyond the proper scope of cross-examination on an affidavit or, more generally, offended the principle of proportionality,” Justice Edward P. Belobaba writes in his decision.
In dismissing the appeal, Belobaba writes he was “not persuaded that the Master erred with regard to the proper scope of cross-examination or in the application of the principle of proportionality. In any event, the application of the proportionality principle was a matter within the Master’s discretion and should therefore be accorded considerable deference.”
The dispute between Mars Canada and Bemco Cash & Carry et al involves the issue of the alleged importation of grey market chocolate bars and a breach of settlement agreements. Mars brought a motion for partial summary judgment on the issues of breach of agreements and punitive damages.
Summers, who acted for the defendants, says that in motions for summary judgments, “parties are often in a real quandary when it comes to cross-examinations because some case law can be read as restricting the right of the examining party to ask questions beyond the four corners of the affidavits or request undertakings.”
The scope of questioning on cross-examinations is an issue that will become more important in light of Supreme Court of Canada decision Hryniak v. Mauldin, 2014 SCC 7 (CanLII), which has increased the availability of summary judgment in Ontario.
“As summary judgments are easier to obtain and are used more frequently as an alternative to trials, courts are going to grapple with how broad the questioning in a cross-examination should be and particularly how far can you compel undertakings for questions a person immediately doesn’t have the answer to,” says Summers, partner with Birenbaum Steinberg Landau Savin & Colraine.
“And it becomes important in summary judgement because each party is supposed to put their best foot forward, and sometimes you need important information from the other side,” he says. “Frequently it’s really crucial that you get answers to undertakings or refusals.”
Mars pointed to an obiter comment that Justice Paul Perell made in Ontario v. Rothmans Inc., 2011 ONSC 2504 (CanLII) that “a party who objects to giving an undertaking during a cross-examination for an application or motion because it would be unduly onerous to answer it should not be required to provide evidence of his or her search capabilities (or absence of them) on any subsequent refusals motion.”
However, Belobaba notes, “even if the objecting party is not required to provide evidence of its ‘search capabilities’ at the refusals motion I note that [Perell] would still require the party to at least voice an initial objection during the cross-examination that the requested productions would indeed be unduly onerous. Having reviewed the relevant portions of the record, I can state that no such objections were made here,” leaving open whether the comments of Perell will be applied in the future.
Summers says that since motions for summary judgments are easier to obtain – in light of the SCC’s decision in Hryniak – lawyers will have to be wary of issues of scope and proportionality at cross-examinations and how they might be applied in motions court.
“It’s still a little unclear,” he says, “but I think the decision in Mars does open the scope and the ability to demand undertakings to some extent.”
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