Canada: Notice For Frustrated Cross-Examiners

Last Updated: March 27 2012
Article by Carolyn Brandow

All too often, affidavits for motions or applications are sworn by lawyers or law clerks based on information from others. These affidavits will sometimes attach entire reports by experts and the grounds for the motion or application will include the opinion set out in the attached expert report. This is frequently seen to shield the author of the report, namely the expert, from cross-examination and, what may well be, the key grounds supporting or disputing the request made in the motion or application from being challenged by way of cross-examination. To proceed with an examination to ask questions of someone who has no personal information can be a good way to waste your time and your client's money.

Litigators are very familiar with the provisions of Rule 39.02 which permit, in most cases, cross-examination of an affiant on an affidavit sworn in support of a motion or application. What is not often pursued, and perhaps frequently forgotten, is Rule 39.03 which permits a party to have a summons issued and served on a witness in order to have that witness attend for an examination to obtain evidence in advance of a motion or application. The witness does not need to be a party nor an affiant of an affidavit in support of the application or motion. The witness can be the expert who prepared the report attached to the affidavit served in support of the motion or application.

No leave of the court is required to have the summons issued, however, an opposing party can bring a motion to quash the summons. The courts have fairly consistently held for the past three decades that such a summons should stand and the examination should proceed if: (i) the evidence that is to be adduced is relevant to the issues raised in the motion or application; (ii) the witness served with the summons has such evidence; and (iii), the examination would not amount to an abuse of process. See Re Canada Metal Co. Ltd. et al. and Heap et al. (1975), 7 O.R. (2d) 185 (ON C.A.) and more recently, CanWest MediaWorks Inc. v. Canada (Attorney General), 2007 ONCA 567 CanLII (ON CA).

The courts will typically require that an examination pursuant to Rule 39 be limited to facts relevant to the issues raised in the motion or application. The scope of the examination will be determined based on a review of both the nature and the grounds for the motion or application. See Elfe Juvenile Products Inc. v. Bern, [1994] O.J. No. 2840 (Ont. Div. Ct.).

With the law being so settled on the test to be applied and a relatively low threshold for the party asking for the examination, you might feel confident that you could always win any motion brought to quash such a summons. However, you should keep in mind that motions to quash have been brought in several cases and some have successfully had a Rule 39.03 summons quashed. Before you have a summons issued, consider the following three issues.

First, the typical smell test of whether the examination might amount to a fishing expedition may be applied by a judge hearing a motion to quash the summons. If there is any appearance that the examination will not garner evidence that will be relevant to the resolution of the particular issue about to be decided (rather than just general discovery), then you may not be able to defend against a motion to quash.

Second, if you want to conduct a Rule 39.03 examination, then you should be prepared to defend the summons on a motion to quash by being able to show, on a reasonable evidentiary basis, that the proposed examination would be conducted on issues relevant to the pending application or motion and that the proposed witness is in a position to offer relevant evidence. See Ontario Federation of Anglers & Hunters (2002), 211 D.L.R. (4th) 741, 2002 CanLII 41606 (ON C.A.). If you successfully jump through this basic evidentiary hoop, then your client will have a prima facie right to conduct the examination and the tactical burden will then switch to the other side to persuade the court that the examination would be an abuse of process.

Some cases suggested that to defend against a motion to quash, the proposed examiner should be able to meet a "high threshold" of proof or be able to prove that information useful to the resolution of the issues will be obtained in the examination. On two occasions, the later writing for the majority of the Court of Appeal, Justice Sharpe has rejected these suggestions and held that only the basic level of proof is required. For the majority of the Court of Appeal, Justice Sharpe commented that requiring a high onus of proof could have the effect of making Rule 39.03 "virtually redundant" as a party who requires an examination to prove his or her case may well not be able to do so prior to the examination at which the party may be able to adduce evidence to prove his or her case. See Transamerica Life Insurance Company of Canada v. Canada Life Assurance Company (1996), 27 O.R. (3d) 291 (Ont. Gen. Div.) and Payne v. Ontario Human Rights Commission, [2000] O.J. No. 2987 (ON C.A.). That being said, to pass the "smell test" of whether it would be a fishing expedition, you might be wise to be able to put forward an affidavit setting out more than just a scintilla or mere possibility that the examination will yield relevant or useful information to the determination of the issues.

Third, the issue of whether a Rule 39.03 examination is an abuse of process is raised more often than you might expect on motions to quash. Past cases suggest that Rule 39.03 examinations may be viewed to be an abuse of process where the main motion is itself an abuse (if the main motion or application is frivolous and vexatious), the examination is being used for an ulterior or improper purpose (such as general discovery on an application where there is no right to a general discovery on an application – see Payne v. OHRC, supra) and where the process itself is abusive (ex. issuing summons to numerous public figures where the evidence is unnecessary or the summons serving an ulterior purpose of embarrassment).

As a final note, as with a Rule 39.02 cross-examination, never forget to act with diligence to move forward with a Rule 39.03 examination or you might lose this potentially powerful tool in your litigator's toolbox.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Carolyn Brandow
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions