It was previously unclear under the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) whether leave of the Court was required to question on an affidavit of records (an AOR). In a recent decision from Justice Macleod (2017 ABQB 26), which upheld a decision of Master Prowse, it was confirmed that leave is not required and that questioning on an AOR is a right under the Rules. This decision provides an important procedural clarification and also sets out certain limitations on the scope of such a cross-examination.

Background

In this case, counsel for the plaintiff Penn West Petroleum Ltd. (Penn West) attempted to arrange for the cross-examination of the deponent of the AOR of one of the defendants, Canadian Natural Resources Limited (CNRL). Counsel for CNRL objected to the cross-examination on the basis that the Rules do not expressly provide for such a right. 

The Old Rules expressly provided that "a person who has made an affidavit, including an affidavit of documents, filed in any action or proceedings, may be cross-examined on the affidavit without order" (rule 414(1)). 

However, the current Rules do not expressly deal with whether cross-examination on an AOR is available without court order. Rule 6.7 deals with cross examination on an affidavit. However, that rule only deals with affidavits in support of an application or in reply to an application and does not deal with cross-examination on an AOR. 

Rule 5.11 provides that a Court can order cross-examination on an AOR to assist the Court in making a determination about whether a record should be provided. It states: 

5.11(1) On application, the Court may order a record to be produced if the Court is satisfied that

(a) a relevant and material record under the control of a party has been omitted from an affidavit of records, or

(b) a claim of privilege has been incorrectly or improperly made in respect of a record.

(2) For the purpose of making a decision on the application, the Court may

(a) inspect a record, and

(b) permit cross-examination on the original and on any subsequent affidavit of records. [Emphasis Added]

However, this section only deals with when the Court is considering whether to order the production of a specific record and did not comment on any general right to cross-examine on an AOR. 

There was previously no case law resolving this issue in Alberta with the sole comment on the general right to cross-examine on an AOR being the decision Manson Insulation Products Ltd. v Crossroads C&I Distributors, 2014 ABQB 442 where the Court stated: 

The parties have proceeded on the assumption that leave is required to cross examine on an affidavit of records.

...the application does not technically fall under rule 5.11(2)... Furthermore, while the question is not before me for consideration, it has yet to be determined that the rules prohibit cross-examination on affidavits of records on more general grounds, as a matter of right. [Emphasis Added]

Decision 

In Master Prowse's decision, he held that a party does not need leave of the court to cross-examine a deponent of an AOR. He acknowledged that the Rules are silent on the issue but commented there are strong general policy considerations that support allowing parties to cross-examine on AORs as a right, as it would assist parties in resolving issues before the court in a timely and cost-effective way in line with the purpose and intention of the Rules. 

Master Prowse also commented on the limitations of the right to cross-examine on an AOR. He stated that cross-examination on an AOR is not meant to give a party two chances at examination for discovery of adverse parties and that a cross-examination "does not open up the scope of a cross-examination on an AOR to the extent of an examination for discovery". Further, he stated that if a party "believes, in the particular circumstances of the case, that the cross-examination is unnecessary or abusive they can move to set aside the appointment."

CNRL appealed the decision of Master Prowse. In reviewing the decision, Justice Macleod agreed with Master Prowse's analysis, finding that a deponent of an AOR can be cross examined as of right. Justice Macleod stressed that cross examination on an AOR is an important tool to "test the methodology or the adequacy of document production" but also stated that if a party believes that cross examination is unnecessary or abusive it can make a motion to set aside the appointment. Justice Macleod also noted that restricting the right to cross examine on an AOR does not accomplish the stated goal in the Rules to "provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective" and that there is nothing to be gained in terms of expediting litigating by requiring a party to obtain leave of the Court to cross examine on an AOR.

Implications

This decision provides an important procedural clarification. Parties should be prepared for the possibility of the cross examination of their deponent on an AOR and should also be mindful of the limited scope of such an examination.

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