The decision of Perell J in Shah v. LG Chem, 2015 ONSC
776, addresses the topic of when a party should be granted leave of
the court, under Rule 39.02(2), to deliver further affidavit
evidence after cross-examination.
The plaintiffs commenced a class action law suit on behalf of
persons in Canada who purchased lithium ion batteries or products
containing these batteries. The plaintiffs alleged that a host of
defendants had conspired to fix the prices of the batteries in a
specific time period.
The plaintiffs brought a certification motion and a group of
defendants (the "NEC defendants") brought a motion to
challenge the jurisdiction of the Court (the NEC defendants have
head offices in Japan). The NEC defendants delivered an
affidavit sworn by Mr. Narita which denied that the NEC defendants
sold the batteries at issue in Canada.
The plaintiffs' responding materials contained an affidavit
sworn by a law clerk, Ms. Flower, attaching public documents
showing a connection between the NEC defendants and batteries sold
in Canada. The plaintiffs cross-examined Mr. Narita on his
affidavit and then, brought a motion seeking leave to file a
further affidavit in the name of Ms. Flower. The further
affidavit set out that, in response to questioning on
cross-examination, Mr. Narita gave evidence of certain sales of
lithium ion batteries for use in products such as iPods and Game
Boys and Motorola phones. Ms. Flower's affidavit included
historical website content which showed that these products were
sold in Canada.
Rule 39.02(2) states:
(2) A party who has cross-examined on an affidavit
delivered by an adverse party shall not subsequently deliver an
affidavit for use at the hearing or conduct an examination under
rule 39.03 without leave or consent, and the court shall grant
leave, on such terms as are just, where it is satisfied that the
party ought to be permitted to respond to any matter raised on the
cross-examination with evidence in the form of an affidavit or a
transcript of an examination conducted under rule 39.03
Justice Perell reviewed the case law on when leave should be
granted to deliver a further affidavit. Perell J. quoted from
his own text: The Law of Civil Procedure in Ontario, 2nd
ed. (Markham, Ont.: Lexis Nexis Canada, 2014). When leave is sought
to deliver an affidavit after cross-examination, the Court should
Whether the matter raised on the cross-examination was relevant
to the litigation;
Whether the affidavit sought to be filed is responsive to the
Whether allowing the delivery of the affidavit would operate
unfairly against the adverse party; and, as always
The Court should take a contextual approach and interpret the
rules liberally so as to ensure a just and timely resolution of the
Justice Perell reviewed the case law on Rule 39.02(2), which
indicates that leave should be granted sparingly and that the Rules
should not be used as a mechanism for correcting deficiencies in
motion materials. The moving party has a high threshold to
meet on a motion for leave to file further evidence.
Rule 39.02 exists to place limits of the evidentiary elements of
litigation and to prevent an endless exchange of affidavits and
cross-examinations. It underlies the obligation of the
parties to put their best foot forwards (from an evidentiary
perspective) on a motion and it should only be relied upon in
exceptional cases. The requirement that a party put his best
foot forwards when embarking on a cross-examination is an approach
designed to ensure the "just, most expeditious and least
expensive determination of motions and applications".
In the within case, Perell J. found that while the further
evidence tendered by the plaintiffs did rebut the evidence given by
the defendants, the evidence was not very important to the
plaintiffs' case with respect to the Court's jurisdiction,
which meant that the plaintiffs had a weak case for arguing that
they met the high threshold required to obtain leave of the
Court. Perell J. was also not persuaded that the
further evidence could not have been produced at first
Perell J. dismissed the plaintiff's argument that to allow
further evidence would be in the interests of justice because the
court would be prejudiced by missing relevant evidence on the basis
that the Court cannot be prejudiced by enforcing the rules of civil
procedure and the law of evidence.
Rarely do I argue a motion of any substance in which a party
does not seek to tender further evidence after cross-examinations.
Often, in my experience, that evidence is admitted by the Court,
with some commitment to give it little weight, as untested
evidence. I will be keeping a copy of this case in my
litigation bag for use on future motions.
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