In HMB Holdings Ltd v Replay Resorts Inc 2018 BCCA 263 the BC Court of Appeal reviewed the law relating to cross examination on an affidavit.
The authority to order cross examination on an affidavit is found in Rule 22-1( 4)(a) of the Supreme Court Civil Rules. It is a discretionary jurisdiction to which difference is owed.
The appeal court will not interfere with the decision to grant or refuse cross examination, unless the chambers judge has committed an error in principle in resolving the application.
The applicable principles to be applied when reviewing a chambers judgment by the Court of Appeal for refusing cross examination on an affidavit were discussed in Balla v Fitch research Corp. 2000 BCCA 448 which followed the decision of the BC Court of Appeal in Brown v. Garrison 63 WWR248 at paragraph 250:
“clearly, and it is being long so held, the judge has a discretion which he or she must exercise on proper principles as to whether or not cross examination should be directed on the application of a party. There is no question that in the normal course where the affidavit on which the cross examine is sought includes facts that are an issue, the deponent will be so ordered to attend if it application therefor is sought. But the circumstances may be such that the judge may properly exercise his or her discretion to refuse such an application, and in this case, I am of the opinion such circumstances existed. This court has great reluctance to interfere with the exercise of a judge’s discretion unless it is clear that that discretion has been wrongly exercised in that no sufficient weight has been given to relevant considerations or that on other grounds a miscarriage of justice resulted”
At paragraph 251, the court continued:
“if facts need to be determined the trial of an issue is an appropriate or even regular method for such determination, but if there is little or no dispute as to facts it is obviously quite proper for the judge to exercise his or her discretion to deal with the problem summarily. Here, although the facts were not admitted, they were not attacked so that, in substance, the learned judge had only to determine a question of law, or at the most a question of mixed fact and law.
The appeal court reversed the decision in Rheault v Rheault (1988) 2 BCLR (2d) 138 when it concluded that the chambers judge had erred in exercising his discretion as the facts deposed to in the affidavits were challenged and an issue, and the chambers judge had overlooked the real issue sought to be established by the cross examination.
In HMB Holdings the appeal court concluded that the chambers judge applied too strict a test to determine whether factual assertions were challenged, and in issue, holding that if the chambers judge’s conclusion were to be sustained, the respondents would be insulated from having their evidence tested on an application which was directed to the dismissal of the plaintiff’s case.
Accordingly, the court ordered cross examination of the affidavit in question.