The recent British Columbia Supreme Court case Cantlie v Canadian Heating Products
Inc. highlights procedural differences across Canadian
jurisdictions with regards to whether a right to cross-examine on
an affidavit filed in a certification motion exists. In Ontario,
Alberta, and Manitoba, the applicable rules of court provide for
cross-examination on affidavits as an inherent right. In other
provinces, such as British Columbia and Saskatchewan, there is no
inherent right to cross-examine on an affidavit filed in support of
a motion. If the parties are unable to agree to cross-examination
by consent, the party seeking to cross-examine must seek leave of
the court to do so.
The policy reason for this is not that residents of certain
jurisdictions are more honest than others, rather, that avoiding
cross-examination in situations where it is not truly necessary
avoids delay, expense, and the risk that parties may engage in
cross-examinations for strategic or petty
