Where a person is cross-examined on an affidavit to be used on a motion or application, the questions asked must be relevant to the matters at issue on the motion or application, or to matters raised in the affidavit, even if not relevant to the those issues. Questions may also be asked that address the deponent’s credibility and reliability (Rule 39.02). Rule 39.03 provides that a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript at the examination for use at the hearing. This applies where that person has not provided an affidavit. That person may be “cross- examined and re-examined”.
The normal principles applicable to a person compelled by a subpoena issued under Rule 39.03 who appears as a stranger to the litigation and is not put forth as a witness on behalf of a party are that “the obligations of a witness being examined under Rule 39.03 must necessarily be even less onerous than on a cross-examination under Rule 39.02” (Magnotta Winery Corp. v. Ontario (Alcohol and Gaming Commission)).
What however, if the person being examined under Rule 39.03 is not a stranger, but rather a party to the motion or application? In that event, as was the case recently in Arnold et al v. Arnold et al, the scope of the examination “should be the same as if that party was cross-examined on an affidavit. Non-parties should not be unduly inconvenienced with intrusive, onerous and time-consuming disclosure requirements. Parties, on the other hand, are obligated to consider the issues arising in an application and put all relevant evidence forward. They cannot shield relevant information from the Court and from other parties by choosing not to swear an affidavit in the proceeding”. (Associate Justice Kaufman). Counsel may take note of Associate Justice Kaufman’s no doubt purposeful reference to “shielding”, and in the use of Rule 39.03 be advised accordingly.