Marion v. KIA, 2015 NUCJ 06

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Marion v. KIA, 2015 NUCJ 06 Date: 20150127 Docket: 18-04-392-CVC Registry: Iqaluit Plaintiff: John Marion -and- Defendant: Kivalliq Inuit Association ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Plaintiff): Austin F. Marshall Counsel (Defendant): Sylvie M. Molgat Location Heard: Iqaluit, Nunavut Date Heard: December 8, 2014 Matters: Cross-Examination on Affidavit REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The plaintiff has brought an application to have counsel for the defendant removed on the basis of conflict of interest. The application was returnable in the first instance during regularly scheduled chambers. An affidavit of the plaintiff was filed in support of the application. [ 2 ] Counsel for the defendant has advised that the application is opposed. It is agreed that the application will require a special chambers date.

Counsel for the defendant wishes to have the plaintiff cross-examined on his affidavit prior to the defendant filing any materials on the application. [ 3 ] The plaintiff is not opposed to the cross-examination on the affidavit but takes the position that the defendant must file its materials prior to cross-examining the plaintiff. II. POSTIONS OF THE PARTIES [ 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 reference to the initial return date of an application and not to the ultimate hearing date. Accordingly, the plaintiff asserts that the defendant is already 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 and contentious issues to be narrowed, thus streamlining and focusing any cross-examination.

It also allows the parties to

schedule cross-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 jurisdictions such as Ontario, Manitoba, and Prince Edward Island, where such a requirement does exist and argues that it is only where a decision has been made and incorporated into the Rules that restrictions should be imposed. III.

ANALYSIS [ 7 ] There seem to be three approaches to the imposition of terms and conditions on the cross-examination on an affidavit in the context of a hearing. As previously indicated, some jurisdictions specifically require that all affidavits be filed in advance of any cross- examination. Other jurisdictions require leave of the Court to cross-examine and, if granted, the Court can impose terms and conditions (see: British Columbia, New Brunswick, Nova Scotia, Newfoundland and Labrador).

The third approach is seen in those jurisdictions that provide for cross-examination as of right. [ 8 ] The applicable Rule in Nunavut (and the Northwest Territories) is as follows: 381.

(1) A person who has made an affidavit filed by a party in an action or proceeding may be cross-examined on the affidavit by any party adverse in interest without an order of the Court.

(2) The person to be cross-examined may be required to attend in the same manner as a party to be examined for discovery.

(3) The rules that apply to examination for discovery of a party apply, with such modifications as the circumstances may require, to

cross-examination on an affidavit.

(4) The party conducting a cross-examination on an affidavit shall cause a transcript of the cross-examination to be filed unless the filing is dispensed with by the Court.

(5) The right to cross-examine shall be exercised with reasonable diligence, and the Court may refuse an adjournment of any application or proceeding for the purpose of cross-examination where the party seeking the adjournment has failed to act with reasonable diligence.

(6) The Court may impose such terms and give such directions for the conduct of cross-examination as will promote the just and efficient determination of the proceedings. (Nunavut Rules of Court, supra para 4) [ 9 ] The only restriction on cross-examination on an affidavit is the discretionary power of the Court in subsection (6). In addition, there is ample authority for the proposition that the Court has the inherent power to control its own process. [ 10 ] Rule 383 provides:

(1) A notice of motion and any supporting affidavit may be served before it is filed. (2)The notice of motion and any affidavit to be relied on in support of an application that has not been already served shall be served no less than five clear days before the return date of the application. (3)An affidavit to be relied upon in opposition to an application shall be served no less than three clear days before the return date of the application. (Nunavut Rules of Court, supra para 4) [ 11 ] The plaintiff argues that Rule 381 must be read in conjunction with Rule 383 and relies upon Woodley v Yellowknife Education District No 1, 2000 NWTSC 7 , [2000] NWTJ No 8 (QL) [Woodley] ; Mahe v Liquor Licensing Board, 2006 NUCJ 23 , [2006] NJ No 25 (QL) [Mahe] ; and Paul's Aircraft Services Ltd v Kenn Borek Air Ltd, 2012 NWTSC 85 , [2012] NWTJ No 100 (QL) [Paul's Aircraft Services] , for the proposition that the “return date” for an application is the first date it is set for regularly scheduled chambers.

He argues that these cases support the proposition that all parties must file their affidavits prior to any cross-examination. [ 12 ] In Woodley , the court was dealing with an application for costs in which a party sought solicitor-client costs because of the conduct of the other party in the litigation, including the late filing of affidavits. The court noted that the late filing of affidavits was a chronic issue and that Rule 383 was being interpreted by the bar as referring the date for a special chambers hearing.

The court stated that the Rule should be interpreted as referring to the original date on which the hearing is first brought, subject to any adjournments. [ 13 ] In Mahe , the court was dealing with a judicial review application and was required to determine if affidavit material based on information and belief rather than personal knowledge was admissible. The Rules provide that affidavits may contain statements based on information and belief on non-contentious matters.

The court held that since no affidavits had been filed in response they could not yet be considered contentious and, accordingly, the affidavits could include statements based on information and belief. [ 14 ] In Paul's Aircraft Services, the court was again dealing with a costs application and was called upon to determine what impact, if any, the late filing of affidavits should have on costs.

The court referred to the desirability of filing materials in advance of special chambers hearings and noted that a Court Practice Direction in the NWT had since made that a requirement. [ 15 ] In my view Woodley, Mahe, and Paul's Aircraft Services, stand for the proposition that all materials should be filed prior to the setting of a special chambers date. I would not go as far as urged by the plaintiff and find that they require all affidavits be filed prior to the initial return date.

As the court stated in Woodley , Rule 383 should be interpreted as referring to the original return date, “subject to any adjournments”.

[16] Both counsel have referred the Rule in Alberta and cases from that jurisdiction. Prior to November 1, 2010, the Rule in Alberta[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: BullexDevelopments Ltd and Buhlmann v Terra Mines Ltd., (AB KB), [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 thatthe court maintains an inherent discretion to control its own process, including the right to impose terms and conditions on 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, underoath, 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-examine withoutconditions, including the prior filing of opposing affidavits (see: Medicini Shoppe Canada Inc v Devchand, 2012 ABQB 375, 541 AR312, at para 20).

[ 20 ] While the Alberta Rules do not have the equivalent of our Rule 381(6), which specifically provides for the imposition of terms and conditions on the cross-examination on an affidavit, Alberta does have interpretive Rules which state that the purpose of 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 the right to cross-examine is abused or if it is exercised in a manner that delays proceedings or drives up costs, then the appropriate remedy is 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 to any cross-examination, in my view such a change should only be implemented after due consideration to the Rules as a whole and a legislative 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 place the 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 correct approach. In my view the correct approach is to maintain the general right to cross-examine and to impose terms or conditions only if necessary. IV. CONCLUSION [ 24 ] The defendant is entitled to cross-examine the plaintiff on his affidavit without first filing an opposing affidavit. Counsel is of course entitled to return the matter to court for terms and conditions on the cross-examination, if necessary. Dated at the City of Iqaluit this 27th day of January, 2015 ___________________ Justice S. Cooper Nunavut Court of Justice