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

AuthorDavid A. Potts; Erin Stoik
 40
Cross-Examination—Section 137.2(4)–(5)
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
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
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.
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

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