No undertakings required during cross-examination on affidavit unless of information and belief

Caputo v. Imperial Tobacco Ltd.  2002 CarswellOnt 3270 is a good source for the proposition that, in general, undertakings are not required to be given on cross-examinations on affidavits unless the affidavits are those of information and belief.

 

The case, which remains good law, holds:

 

 

41          Given how ubiquitous the notion of "undertakings" is in examinations for discovery, it is perhaps surprising to find that this is not a concept articulated in the rules. The reason undertakings are given on discoveries is that our form of discovery in Ontario typically permits discovery of each party only once and in the case of corporate or other non natural persons, typically only requires a single representative to be examined. It follows that the person being examined has the obligation to fully inform himself or herself about the case and if information is not within his or her knowledge, but the question is acknowledged as proper and relevant, an undertaking to obtain the information is usually given. On a motion, by contrast, evidence may be put in by affidavit or by examining a witness in aid of the pending motion under Rule 39.03 and every witness tendered by the other side may be examined or cross examined. Arguably therefore there is a reduced need for undertakings.

 

42          This is not to say that undertakings may never be required. There is little authority on this point but Rabbiah v. Deak & Co., [1961] O.W.N. 280 (Ont. H.C.) and Mutual Life Assurance Co. of Can. v. Buffer Investments Inc. (1985), 52 O.R. (2d) 335 (Ont. H.C.) remain good law. A deponent of an affidavit may be asked to make reasonable inquiries in order to answer proper questions put on cross examination. The need for undertakings may be particularly acute when an affidavit is given on "information and belief". To hold otherwise would permit a party to give a witness only certain relevant facts and to insulate the other facts from disclosure by putting up what is in effect a straw witness. Of course the undertakings must be relevant and should not be unduly onerous. In the case of information and belief affidavits sworn by members of law firms, there is the additional concern to protect properly privileged information unless it is apparent the privilege has been waived by the nature of the evidence itself.

 

43          I have no hesitation in holding that requesting an expert witness to review articles or data and undertake an analysis which can not be done within a reasonable time during the cross examination itself goes well beyond the ambit reasonably required of a witness under cross examination. I also have no hesitation in finding that a witness who has sworn an affidavit on information and belief who can not answer a relevant question must undertake to ask the source of the information and belief and supply the answer. Between these extremes the questions will have to be dealt with on a case by case basis.

 

44          Another consideration in determining the obligation to be imposed on a party being examined is whether or not the examining party already has the information. In that case, since the examining party has chosen not to put the information in evidence, there seems little justification for imposing on the other party the obligation to do extensive work to put the facts in evidence through the cross examination. This is distinctly different from discovery. At a discovery, one is concerned to know what evidence the other party will give at trial which may differ from evidence in the possession of the examining party. On a cross examination, each party already knows what the evidence is they will have to meet on the motion.