Once both sides have exchanged their affidavits, they can cross-examine each other’s deponents. Questions asked during cross-examination should generally be limited to those dealing with the credibility of the witness or a matter relevant to the determination of the issue in respect of which the affidavit was filed. It is generally not permissible for a counsel to answer on behalf of his client, unless the other side agrees.
All parties must complete their cross-examination of the other parties’ deponents within 20 days after the filing of the respondent’s affidavit(s) or the expiration of the time for doing so, whichever is earlier.
Oral Cross-Examination on Affidavits
A party who wants to cross-examine another party’s deponent must serve on that deponent a “direction to attend” using Form 91 of the Federal Courts Rules (although, if the other party is represented by a lawyer, the notice to attend should be sent to the lawyer). That party can also request, in the notice to attend, that the deponent produce for inspection at the examination “all documents and other material in that person’s possession, power or control that are relevant to the matters in issue in the action.”
The direction to attend must be served:
(a) where the person to be examined is an adverse party, at least six days before the day of the proposed examination; or
(b) where the person to be examined is not a party to the proceeding, at least 10 days before the day of the proposed examination.
Further, when a party decides to cross-examine another party’s deponent, that party must:
- make the necessary arrangements for a court reporter to be present at the examination;
- pay the fees and disbursements related to the recording of the examination, as set out in Tariff A of the Federal Courts Rules; and
- if applicable, pay reasonable travel expenses for the deponent to attend the cross-examination.
If two parties intend to cross-examine each other’s deponents, they normally agree to retain one court reporter who will record and transcribe both examinations. To visualize, the day of the cross-examination, the court reporter will come to the meeting room at the time agreed to. The court reporter will sit at the head of the table, with each party sitting across one another on opposite sides of the table. The cross-examination will be recorded on tape, with the deponent being sworn first. The setting is relatively informal. If a party needs to take a break or needs to discuss something with the other party, that party can ask the court reporter to pause the recording and go “off-record”. If the party being questioned objects to a question, that party must state briefly the reasons for the objection. Once an objection has been lodged, the question need not be answered. The party asking the question will have to bring a motion to compel an answer. If a party believes that the other party is acting improperly, that party may adjourn the cross-examination and bring a motion for direction. From the deponent’s perspective, improper conduct refers to situations where the other party is asking an excessive number of questions or improper questions, or is conducting the examination in bad faith or in an abusive manner. From the examiner’s perspective, improper conduct refers to situations where the deponent evades answering questions or fails to produce the documents requested in the notice to attend.
Written Cross-Examination of Affidavits
As an alternative to oral cross-examination, a party can also cross-examine another party’s deponent in writing by serving on that person a list of concise and separately numbered questions using Form 99A of the Federal Courts Rules. The person to whom the questions are addressed must answer within 30 days by way of an affidavit using Form 99B of the Federal Courts Rules. If the person objects to a question, he can state his objection and the grounds for his objection, or he can bring a motion to have the question struck out.
There are undeniable advantages to cross-examining someone face-to-face. Generally, it is preferable to proceed by way of oral cross-examination, unless special circumstances.
Last updated: October 9, 2016