Canada: Pre-Certification Right To Cross-Examination Across Canada

The recent British Columbia Supreme Court case Cantlie v Canadian Heating Products Inc. highlights procedural differences across Canadian jurisdictions with regards to whether a right to cross-examine on an affidavit filed in a certification motion exists. In Ontario, Alberta, and Manitoba, the applicable rules of court provide for cross-examination on affidavits as an inherent right. In other provinces, such as British Columbia and Saskatchewan, there is no inherent right to cross-examine on an affidavit filed in support of a motion. If the parties are unable to agree to cross-examination by consent, the party seeking to cross-examine must seek leave of the court to do so.

The policy reason for this is not that residents of certain jurisdictions are more honest than others, rather, that avoiding cross-examination in situations where it is not truly necessary avoids delay, expense, and the risk that parties may engage in cross-examinations for strategic or petty reasons that do not further the interests of justice.

Test for Cross-Examination in British Columbia

In British Columbia, courts rarely exercise their discretion to grant leave to cross-examine prior to certification. In Cantlie, the plaintiffs in a proposed class action alleged that several fireplace manufacturers knew or ought to have known that the fireplaces were defective. The defendants applied for an order allowing them to cross-examine two of the proposed representative plaintiffs. The court relied on the test set out in the trial decision in Pro-Sys Consultants Ltd. v Microsoft Corporation (which went to the Supreme Court of Canada and was discussed elsewhere on this blog). If a conflict in the evidence is found, the judge may exercise their discretion to allow cross-examination depending on the particular factors of each case, including:

  • The importance of the issue;
  • Whether cross-examination will unduly delay the certification application; and
  • Whether the cross-examination is likely to elucidate the relevant issues.

In Cantlie, the justice granted leave to the defendants to cross-examine one of the plaintiffs on a limited issue of access of class members to safety features because an evidentiary conflict existed that was germane to certification. The justice emphasized that the purpose of cross-examination is to test the truthfulness of statements contained in the affidavit and not to investigate matters which have not been deposed to by the affiant. The court concluded that cross-examination in a certification application cannot operate as an examination for discovery in testing the merits of the plaintiff's case.

Test for Cross-Examination in Saskatchewan

Similarly, leave to cross-examine an affiant in Saskatchewan is a discretionary remedy that is not routinely granted. The applicant must demonstrate the cross-examination will assist in resolving the issue before the court and that it will not result in an injustice. However, leave to cross-examine appears to be granted more readily in proposed class actions than in other civil proceedings (see White v Glaxosmithkine, Inc.).

There are a number of characteristics of a certification application that may enhance the claim of an applicant for leave to cross-examine, such as the importance of establishing the plaintiff is the proper representative of the proposed class, the need to set out the basis for the representative plaintiff's proposed claim, and the significant affect that certification of a class action has on defendants. Defendants are entitled to defend a certification application fully, which includes the right to explore the credibility of the affiant and matters raised in the plaintiff's affidavits.

Cross-Examination in Alberta and Ontario

In contrast, parties in Alberta and Ontario have an inherent right to cross-examine on an affidavit filed in support of an application. Cross-examination is not strictly bound to the contents of the affidavit, but may cover anything that is relevant and material to the pending application. Parties have the ability to fully test the issues relevant to the certification application, with the caveat that the cross-examination cannot be carried out in a manner that is excessive or abusive. The broad scope of cross-examination may assist the parties in advancing evidence to support their arguments about whether the certification criterion have been satisfied (see Lipson v Cassels Brock & Blackwell LLP).

Impact of the Differences between Jurisdictions

The impact of these procedural differences between provinces can be substantial in the class action context. In jurisdictions where cross-examination is a right the parties can test the foundation of the underlying action to expose potential weaknesses. Where cross-examination is not an inherent right, there is generally less delay and expense involved in a certification hearing. Parties should keep these issues in mind when considering jurisdiction and strategy in the lead up to certification.

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.

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