Cross-Examination - Section 137.2(4)?(5)

• Author: David A. Potts; Erin Stoik
• Pages: 418-435

418

 40

Cross-Examination—Section 137.2(4)–(5)

LEGISLATION

Courts of Justice Act, RSO 1990, c C.34, ss 137.2(4)–(5):

Limit on cross-examinations

137.2 (4) Subject to subsection (5), cross-examination on any documentary

evidence f‌iled by the parties shall not exceed a total of seven hours for all

plaintif‌fs in the proceeding and seven hours for all defendants. 2015, c. 23, s. 3.

Same, extension of time

(5) A judge may extend the time permitted for cross-examination on

documentary evidence if it is necessary to do so in the interests of justice.

2015, c. 23, s. 3.

The British Columbia Protection of Public Participation Act, SBC 2019, c3

[PPPA] covers cross-examinations in the following sections at ss 9(1) and

9(5)–(6):

Procedure on application

9 (1) Subject to this Act, an application for a dismissal order under section 4

must be made in accordance with the Supreme Court Civil Rules.

. . .

(5) An applicant or respondent may, before the hearing of the application,

(a) call, out of court before an ocial reporter, the witness who swore or

armed the adavit for cross-examination on the witness’s adavit, and

(b) cross-examine the witness on the witness’s adavit, provided that

(i) the total period of cross-examination of all applicants in the proceed-

ing does not exceed 7 hours in duration, and

(ii) the total period of cross-examination of all respondents in the pro-

ceeding does not exceed 7 hours in duration.

Cross-Examination—Section 137.2(4)–(5) | 419

(6) The court may extend the period permitted for cross-examination

under subsection (5) if the court considers it necessary in the interests of

justice.

The British Columbia PPPA dif‌fers from the Ontario legislation insofar

as it explicitly requires that, on an application for a dismissal order under

section 4, evidence must be given by adavit.

CASELAW

Cross-Examination in Anti-SLAPP Motions

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 38 and 52:

[38] Section 137.1(4)(a) may therefore be interpreted by distinguishing a motion

made under s. 137.1 from a motion to strike and a motion for summary judg-

ment, both of which are tools that remain available to parties notwithstanding

the existence of s. 137.1. The very fact that the legislature created s. 137.1 as a

mechanism indicates that a s. 137.1 motion was meant to fulf‌il a dif‌ferent pur-

pose than these other motions. While a summary judgment motion allows par-

ties to f‌ile a more extensive record and a motion to strike is adjudicated solely

on the pleadings, s. 137.1 contemplates that the parties will f‌ile evidence and

permits limited cross-examination. This suggests that the parties are expected

to put forward a record, commensurate with the stage of the proceeding at

which the motion is brought, that lends itself to the inquiry mandated under

s. 137.1(4)(a). Thus, although the limited record at this stage does not allow for

the ultimate adjudication of the issues, it necessarily entails an inquiry that goes

beyond the parties’ pleadings to consider the contents of the record (the extent

of such consideration will be explored further in the next section).

. . .

[52] It is therefore important to recognize how s. 137.1 motions dif‌fer from

summary judgment motions, as brief‌ly touched on in the preceding section.

Section 137.1 motions are made at an earlier stage in the litigation process, with

much more limited evidence and corresponding procedural limitations (see s.

137.2). As a result, a motion judge deciding a s. 137.1 motion should engage in

only limited weighing of the evidence and should defer ultimate assessments

of credibility and other questions requiring a deep dive into the evidence to a

later stage, where judicial powers of inquiry are broader and pleadings more

fully developed. This is not to say that the motion judge should take the motion

evidence at face value or that bald allegations are sucient; again, the judge