Unterschultz v Clark, 2021 ABQB 635

Court of Queen’s Bench of Alberta Citation: Unterschultz v Clark, 2021 ABQB 635 Date: 20210811 Docket: 4803 171276 Registry: Edmonton Between: Penny Mary-Lou Unterschultz Plaintiff (Respondent) - and - Andrew Greer Clark Defendant (Applicant) _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ [ 1 ] I have considered the sequencing point arising from the case-management meeting on August 6, 2021 i.e. whether Ms.

Unterschultz is, or should be, obliged to file her affidavit on the spousal-support review and variation applications (or either of them) before being permitted to cross-examine Mr. Clark on his already-filed affidavit in support of both applications. [ 2 ] The answer is no, in light of the cases gathered in the Appendix. [ 3 ] In a nutshell, the general rule in Alberta is that a party need not its affidavit first i.e. before cross-examining the opposite party . [ 4 ] Exceptions to this rule may exist, but I am not satisfied that any of them apply here. In any case, I am not satisfied that Ms.

Huizinga's approach will lead to avoidable delays, incremental expense, or other inefficiencies. [ 5 ] In fact, the opposite: as I understand it, a possible outcome of her approach is that the review application may become unnecessary i.e. with Ms. Unterschultz conceding that the monthly support obligation should be set aside. That outcome would also mean no affidavit from her at all, and thus (of course) no cross-examination, no application to compel refused questions or outstanding undertakings, and no appeals of any such application outcomes. [ 6 ] If it turns out that the cross-examination of Mr.

Clark does not unfold as Ms. Huizinga anticipates, and Ms. Clark decides to contest the review application and, as part of that, to file affidavit, a separate cross-examination will have to be teed up, and we may have to deal with refusals, undertakings, etc.

[ 7 ] But I am not sure that, overall, the net time required to do that work would, combined with the time and effort associated with the initial "Clark cross-examination", exceed the time and effort that would be required to get through "all at once" cross- examinations and associated applications.

In other words, whether we proceed "all at once" or "in sequence", as I see it the same net time and expense will be involved, at least more or less. [ 8 ] For example, if it would take (for instance) one day to complete the Clark cross-examination and a further half-day to wrangle with any refusals and undertaking issues arising from that cross-examination, and same for the "Unterschultz half" of any such proceedings held at the same time (i.e. three days overall), I do not see why the separation of the two phases (if indeed an Unterschultz affidavit is eventually filed) would mean that, overall, more than three days would be required overall i.e. if we needed 1.5 days for the "Clark portion" and (later) 1.5 days for the "Unterschultz portion." [ 9 ] I may be overlooking some economies of scale here, but I believe that such considerations are already factored into the general Alberta approach i.e. no "file first" obligation on a wants-to-cross-examine party. [ 10 ] In any case, as noted, given the upside of Ms.

Huizinga's approach being that an entire (review) dimension of the current double-barreled application may fall away, I see a "Clark first" cross-examination as appropriate. [ 11 ] I also note that that approach is not at odds with my end-of-June ruling in 2021 ABQB 492 : Ms. Huizinga is not asking for a threshold ruling on whether a material change exists here, instead, simply invoking the standard Alberta approach to the sequencing of cross-examinations. [ 12 ] Viewed differently, I do not see her request as at odds with the notion that review applications require affidavits from both parties.

Her client will either be abandoning her resistance to that application or filing an affidavit after completing the proposed Clark- first cross-examination. [ 13 ] All to say: I do not see any compelling reasons to depart here from the standard Alberta approach. [ 14 ] Accordingly, the "Clark cross-examination" will occur first, without any precondition of an Unterschultz affidavit being filed. [ 15 ] If the parties require further directions, I ask that they attempt to agree on the details. If they cannot agree, I invite their (succinct) emails outlining their respective proposals, and I will give directions.

Heard on the 6 th day of August, 2021. Dated at Edmonton, Alberta this 11 th day of August, 2021. M. J. Lema J.C.Q.B.A. Appearances: Michael R. Kinash, Q.C. Bryan & Company LLP for the Applicant Tina Huizinga Huizinga Di Toppa Coles & Layton for the Respondent Appendix (cases considering whether party seeking to cross-examine

must first file its own affidavit) Krul v. Edmonton (City), (AB QB); (1963) 41 WWR (NS) 449 (Farthing J.) … 1 must confess that I have never before heard that, to have the right of cross-examination on an affidavit, it is first necessaryto file an affidavit in contradiction. The refusal of the learned magistrate was, in my view, a mistake in law. … [p 455] Edmonton Savings & Credit Union Ltd. v. H.R. Miller Homes Ltd., (AB QB) (Master Funduk) The submission by counsel for the plaintiff about the defendants having to present contrary evidence to show the amount claimed is notcorrect is untenable.

The decisions above cited are a complete answer to that submission. The defendants have a right to cross-examine and without the necessity of first presenting a contrary affidavit: Krul v. City of Edmonton (1963), (AB QB), 41 W.W.R.(N.S.) 449 (Alta. S. C.). [para 62] Marion v. KIA, 2015 NUCJ 6 (Cooper J.) [3] The plaintiff is not opposed to the cross-examination on the affidavit but takes the position that the defendant must file itsmaterials prior to cross-examining the plaintiff. [4] The plaintiff argues that the Nunavut Rules of Court, N.W.T.

R-010-96, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C.1993, c. 28 [Rules], setting time lines for the filing and service of affidavits to be relied upon on an application must be read in referenceto the initial return date of an application and not to the ultimate hearing date. Accordingly, the plaintiff asserts that the defendant isalready non-compliant with the Rules. [5] The plaintiff argues that there are good policy reasons for interpreting the Rules in such a way as it allows issues andcontentious issues to be narrowed, thus streamlining and focusing any cross-examination.

It also allows the parties to schedulecross-examinations so they proceed consecutively, thereby increasing efficiency and reducing costs. [6] The defendant argues that the Rules do not impose any requirement that opposing affidavits be filed prior to cross-examination and that the Court should not be imposing conditions that are not in the Rules.

The defendant points to jurisdictionssuch as Ontario, Manitoba, and Prince Edward Island, where such a requirement does exist and argues that it is only where adecision has been made and incorporated into the Rules that restrictions should be imposed. [7] There seem to be three approaches to the imposition of terms and conditions on the cross-examination on an affidavit in thecontext of a hearing. As previously indicated, some jurisdictions specifically require that all affidavits be filed in advance of anycross-examination.

Other jurisdictions require leave of the Court to cross-examine and, if granted, the Court can impose terms andconditions (see: British Columbia, New Brunswick, Nova Scotia, Newfoundland and Labrador). The third approach is seen in thosejurisdictions that provide for cross-examination as of right. [16] Both counsel have referred the Rule in Alberta and cases from that jurisdiction.

Prior to November 1, 2010, the Rule inAlberta [Alberta Rules of Court, Alta Reg 390/1968] was: Examinations on affidavit 314(1) A person who has made an affidavit, including an affidavit of documents, filed in any action or proceedings, may be cross-examined on the affidavit without order.

(2) The deponent may be required to attend in the same manner as a party being examined for discovery and the procedure on hisexamination is subject to the same Rules, so far as they are applicable, as the Rules that apply to the examination for discovery of aparty.

(3) The party conducting the cross-examination shall cause a transcript of the cross-examination to be filed unless dispensed with by theCourt.

(4) Upon application by the party seeking the cross-examination, the Court may dispense with the tender of conduct money and requirethat the party filing the affidavit produce the deponent for cross-examination.

(5) For the purpose of requiring the attendance of the deponent at the cross-examination, the party filing the affidavit is entitled to servea copy of the Appointment upon the person to be examined and upon payment of proper conduct money the person to be examined shallattend and submit to examination. [17] Cases decided under Rule 314 held that the Rule provided for an unconditional right to cross-examine on an affidavit (see:Bullex Developments Ltd and Buhlmann v Terra Mines Ltd., (AB QB), [1984] AJ No 2625 (QL), 31 Alta LR (2d)93 [Bullex]).

Cases subsequent to Bullex, while acknowledging a general right to cross-examine on affidavits without conditions,held that the court maintains an inherent discretion to control its own process, including the right to impose terms and conditionson cross-examination (see: Alberta Spanplatten AG & Co Verwaltungs KG v Alberta Aspen Board, (AB QB), 1987CarswellAlta 1054 [Alberta Spanplatten]; Alberta Treasury Branches v Leahy, 1999 ABQB 829 CanLII, 254 AR 263; 410086 AlbertaLtd. v Carroll, 2004 ABQB 659, 373 AR 381; AMS v JI, 2004 ABQB 874 , 365 AR 398).

In Alberta Spanplatten, the court didrequire the respondent to file materials prior to cross-examination on affidavits, having found that there were special circumstances thatwarranted the imposition of terms and conditions. [18] Since November 1, 2010, the Alberta Rule [Alberta Rules of Court, Alta Reg 124/2010 [Alberta Rules]] has been: Questioning on affidavit in support, response and reply to application 6.7 A person who makes an affidavit in support of an application or in response or reply to an application may be questioned,under oath, on the affidavit by a person adverse in interest on the application, and (

a) rules 6.16 to 6.20 apply for the purposes of this rule, and (

b) the transcript of the questioning must be filed by the questioning party. [19] The new Rule has been interpreted in accordance with the earlier cases as providing for a general right to cross-examinewithout conditions, including the prior filing of opposing affidavits (see: Medicini Shoppe Canada Inc v Devchand, 2012 ABQB375, 541 AR 312, at para 20). [20] While the Alberta Rules do not have the equivalent of our Rule 381(6), which specifically provides for the imposition ofterms and conditions on the cross-examination on an affidavit, Alberta does have interpretive Rules which state that the purposeof the Rules is to provide for the efficient and fair disposition of matters and that the Rules may be varied when appropriate. [21] The Alberta cases continue to recognize a general right to cross-examine on affidavits without the imposition of conditions,while acknowledging that there may be special circumstances when terms and conditions are appropriate (such as urgency).

If theright to cross-examine is abused or if it is exercised in a manner that delays proceedings or drives up costs, then the appropriate remedyis to award costs, which may be punitive, on the responsible party.

[22] While I appreciate that there are legitimate policy reasons to support the proposition that opposing affidavits should be filed prior toany cross-examination, in my view such a change should only be implemented after due consideration to the Rules as a whole and alegislative amendment. [23] The plaintiff urges the Court to impose a general rule that all affidavits must be filed prior to cross-examinations and seeks to placethe onus on the party seeking to vary from this process to make a case pursuant to Rule 381(6). In my view this is not the correctapproach.

In my view the correct approach is to maintain the general right to cross-examine and to impose terms or conditionsonly if necessary. [24] The defendant is entitled to cross-examine the plaintiff on his affidavit without first filing an opposing affidavit. Counsel isof course entitled to return the matter to court for terms and conditions on the cross-examination, if necessary. [16] Bullex Developments Ltd. v. Terra Mines Ltd., (AB QB) (Master Quinn) [1] The plaintiff has applied for

summary judgment pursuant to Alberta Rules of Court, R. 159. Counsel for the defendant appearedon the application and requested an adjournment for the purpose of examining on the affidavit filed in support of the plaintiff’sapplication. Counsel for the plaintiff was not opposed to an adjournment being granted, but he requested that the defendant beordered to file forthwith any affidavit which it might wish to file in opposition to the application. Counsel said that in this wayexaminations on both affidavits could take place at the same time.

It would do away with the possibility that the defendant mightdecide to file an affidavit in opposition to the application only after the examination on the plaintiff’s affidavit had beencompleted. If the defendant filed an affidavit in opposition only after the examination on the plaintiff’s action had been held, andif counsel for the plaintiff wished to cross-examine on it, a further adjournment would be required. Counsel for the plaintiff wasmost anxious to get the matter before the court for argument on the merits of the

summary judgment application as quickly as possible. [2] Counsel for the defendant was not willing to say whether or not his client would be wanting to file an affidavit inopposition to the application. He submits that he should be permitted to cross-examine on the plaintiff’s affidavit before his clientdecides whether or not to file its own affidavit in opposition to the matter. [3] This same dispute occurs not infrequently where adjournments are sought for the purpose of examination on an affidavit.Neither counsel was able to refer me to any authorities supporting their respective positions, and I have been unable to find any. [4] Rule 314(1) of the Rules of Court is as follows: 314.

(1) A person who has made an affidavit, including an affidavit of documents, filed in any action or proceedings, may be cross-examined on the affidavit without order. [5] In my opinion this rule gives an interested party the right to cross-examine on an affidavit which has been filed in theaction. That right is not qualified in any way. It would be a derogation from the right given by the rule for me to attachconditions to the cross-examination. [6] The defendant may obtain sufficient qualification or admissions from the plaintiff on the cross-examination that thedefendant is certain it will be successful in opposing the plaintiff’s

summary judgment application without filing its own affidavit.Defendants sometimes make that decision to their own regret, but it is their own decision to make. [7] The plaintiff may suggest that it is somehow unfair for the plaintiff to be exposed to cross-examination before thedefendant is required to put in any affidavit at all. The plaintiff has the onus of proving its case, and if its case is a proper one forsummary judgment it should not fear any affidavit that can be filed by the defendant, even after the defendant has had theopportunity of both reading and cross-examining on the plaintiff’s affidavit.

At a trial the plaintiff puts in his evidence first andis subject to cross-examination before the defendant is required to lead any of his evidence. [8] I would accordingly order that the plaintiff’s application be adjourned for three weeks from the date of these reasons to allow thedefendant to cross-examine on the affidavit of the plaintiff.

The said adjournment is not conditional upon the defendant filing an affidavitin opposition to the plaintiff’s affidavit. [9] If the defendant does file an affidavit and the plaintiff wishes to cross-examine on it, the matter will simply have to be delayeduntil that is done. If the plaintiff is ultimately successful in obtaining a

summary judgment, it will nonetheless have a judgmentsignificantly sooner than it would have obtained a judgment if the matter had gone to trial. [10] Costs will be in the cause. Medicine Shoppe Canada Inc. v Devchand, 2012 ABQB 375 (Topolniski J.) [20] A respondent to a motion need not file a responsive affidavit before questioning the applicant and may elect to proceed

without any responsive affidavit (WA Stevenson and JE Côté, Alberta Civil Procedure Handbook (Edmonton: Juriliber, 1997), c 45, PtN; Bullex Developments Ltd v Terra Mines Ltd (1984), (AB QB), 31 Alta LR (2d) 93 at paras 5-6 (QB); Triple D &GL Ranches Ltd v Duncan, 2011 ABQB 401 at para 56). This applies equally to a party resisting an application for a stay. Williams v Suitor, 2001 ABQB 72 (Rooke J., as he then was) There are several reasons for this decision.

First, however, it is not disputed that a party opposite has an almost absolute right to cross-examine on an affidavit: Alberta Rules of Court, Rule 314; and, inter alia, Gunderson v. Jenkins (1998), 1998 ABCA 174 , 216A.R. 344. Moreover, one need not file an opposing affidavit before cross-examination: inter alia, Stevenson & Côtè, Civil ProcedureGuide, 1996 (Edmonton: Juriliber, 1996), at 1238, and cases referenced therein.

Those rights do not, however, entitle the party examiningto costs, and may, in my view, entitle the party on whose behalf the affidavit is filed to costs if the examination is not on relevant mattersor serves no useful purpose. [para 3] By contrast (“file affidavit before cross-examining” rule), see AB Hassle v. Apotex Inc., 2004 FC 694 (Prothonotary Lafreniere): Rule 84 of the Federal Court Rules, 1998 establishes the sequence of cross-examinations on affidavits. A party may not cross-examineon its opponents' affidavits until the party has served its own affidavits.

Had the Applicants intended to adduce their own evidence oftesting of the samples, they should have taken steps to compel production of the samples, conducted their testing, and then move forleave to file additional affidavit evidence prior to scheduling cross-examinations. To allow the Applicants to use the cross-examination ofDr. Sherman as a trigger to reopen the evidentiary record on a issue that was live between the parties from the start would in my view beinappropriate and unjust.

It would necessarily result in further delay in the proceeding, and could potentially jeopardize the hearing ofthe application in Court File T-1878-02. [para 40] Federal Courts Rules 84

(1) A party seeking to cross-examine the deponent of an affidavit filed in a motion or application shall not do so until the partyhas served on all other parties every affidavit on which the party intends to rely in the motion or application, except with theconsent of all other parties or with leave of the Court.