"Single file" or "all together now?" Questioning the Alberta approach

The recent decision of Master Prowse in Clearbakk Energy Services Inc v Sunshine Oilsands Ltd (Clearbakk)^[1] represents a potential challenge to the general practice in Alberta that a respondent can defer filing its responding affidavit until after questioning (generally referred to by counsel as cross-examination) on an applicant's affidavit. The Master made the comments in obiter (meaning the remark was incidental and not key to the matter, which was a straightforward summary judgment application). While we do not expect the Master's remarks to overturn the general approach, it does raise questions as to whether the general approach should apply in all circumstances and provides some guidance for when exceptions should be made. 

In Clearbakk, Master Prowse stated that a respondent should file its responding affidavit prior to cross-examination on the applicant's affidavit, and that if the parties cannot agree on that process, the applicant should seek the Court's intervention. The Master's primary reasoning was the efficacy afforded by concurrent scheduling of the cross-examinations rather than proceeding with each party separately, which the Master noted may add months of time to a litigation. Master Prowse's reasoning flows from Rule 1.2(3)(a), which provides that parties to litigation must facilitate the quickest means of resolving the claim at the least expense.

Master Prowse did not cite any case authority in support of his remarks, nor did the Master consider the effect of his position on the increasingly complex cases coming before the Court for summary determination. The Alberta Court of Appeal has, since the Supreme Court of Canada's 2014 decision in Hryniak v Mauldin^[2] encouraged litigants to make increased use of the summary procedures provided for in the Rules wherever appropriate. Following that guidance, Alberta is seeing more complex matters advanced through the summary judgment/dismissal process. These more complex cases do not always fit the approach proposed by Master Prowse. For example, Courts are seeing an increase in applications for summary judgment that rely on opinion evidence from expert witnesses. A respondent to such an application may be required to lead conflicting expert evidence as a means of defeating the motion. In such circumstances, it usually makes more sense for the Respondent to follow the established Alberta approach before finalizing its response materials, which may include any rebuttal expert reports.

The obiter remarks in Clearbakk do not align with the prior decided cases on this issue. In August 2021, shortly before the Clearkbakk decision, Justice Lema of the Alberta Court of Queen's Bench in Unterschultz v Clark (Unterschultz),^[3] ruled on the same issue, but reached the opposite conclusion. Justice Lema held that there are no compelling reasons to depart from the standard Alberta practice. Justice Lema cited precedent in support of the typical approach in Alberta, ultimately finding no grounds on which to require that the respondent file a responding affidavit before cross-examining the applicant, and found that this approach does not cause undue delay in the proceedings.

He acknowledged that while exceptions may exist, the general rule exists to allow the responding party to assess the applicant's case before potentially wasting resources in response, as respondent's counsel may determine following cross-examination of the applicant that no responding evidence is necessary. His Lordship contrasted the general rule in Alberta to the rule in BC and Ontario, where all affidavits are filed before concurrent cross-examinations of all parties takes place (or in the case of BC, may take place with leave of the Court). Justice Lema considered the potential economies of scale of the rule in those provinces, but found that the Alberta approach already factors in such considerations.

Interestingly, the reasoning in both Clearbakk and Unterschultz rely on Rule 1.2, commenting on potential delay, expense, and inefficiencies, but ultimately come to different conclusions. Master Prowse's decision in Clearbakk does not cite Unterschultz, and it appears neither decision was appealed. While Justice Lema's decision sets out the law in Alberta, the reasoning provided by Master Prowse may lead Courts to conclude that relatively simple matters, like the issue being adjudicated in Clearbakk, can be dealt with more efficiently by deviating from the general Alberta practice.

The rules in Alberta, Ontario, and British Columbia for questioning on affidavits

Alberta

The Alberta Rules of Court (the Rules)^[4] provide no explicit direction as to the procedure parties must follow in scheduling cross-examinations on affidavits. This contrasts with the rules in British Columbia ^[5] and Ontario^[6], which require respondents to file their own responding affidavits prior to any cross-examination on the applicant's affiants. The Alberta approach also differs from our neighbours in BC and Ontario, in that pursuant to Rule 6.8, cross-examination for the purposes of an application is not restricted to a deponent of an affidavit. Counsel may cross-examine anyone adverse in interest even without a sworn affidavit. The purpose of doing so is to discover all relevant and material information for the application, and to assist in preparing the responding materials. Such cross-examinations will typically occur before the respondent provides responding materials.

Ontario

In Ontario, Rule 39.02 requires concurrent cross-examinations on affidavits. Cross-examinations are restricted to the deponent of an affidavit. Once the parties file their affidavits and complete cross-examinations, they are barred from filing further affidavit evidence without leave of the Court. In practice, the Ontario courts only grant such leave sparingly.

In Nexim Healthcare Consultants Inc v Yacoob^[7] Master Jolley set out the four-part test to determine whether the Court may grant leave to file a subsequent affidavit or allow further cross-examination:

1. Is the evidence relevant?
2. Does the evidence respond to a matter raised on cross-examination?
3. Would granting leave cause non-compensable prejudice?
4. Is there an adequate explanation why the evidence was not filed earlier?^[8]

British Columbia

In British Columbia, there is no inherent right to cross-examine on an affidavit filed in support of a motion. If the parties are unable to agree on cross-examinations by consent, the party seeking to cross-examine must obtain leave of the court pursuant to Rule 22-1(4)(a) of the Supreme Court Civil Rules, and time limits are imposed for each witness. Rule 22-1(4) does not specify whether all affidavits must be filed before a party seeks leave to cross-examine.

In Stephens v Atria Group, Inc,^[9]the BC Court of Appeal recited the test developed in the case authorities for determining whether to exercise its discretion to permit cross-examination:

• whether there are material facts in issue;
• whether the cross-examination is relevant to an issue that may affect the outcome of the application; and
• whether the cross-examination will serve a useful purpose in terms of eliciting evidence that would assist in determining the issue^[10]

^​The Court of Appeal also noted that other cases have identified additional considerations, such as whether the information sought is available through other means, and whether the cross-examination will produce unreasonable delay, or generate unreasonable expense.^[11]