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A good question: the Alberta Court of Queen’s Bench clarifies Questioning on Affidavit

June 20th, 2017   Authored by Dex Zucchi

In Alberta (AG) v Alberta Power (2000) Ltd (“Alberta Power”),[1] the Alberta Court of Queen’s Bench helpfully explains how Questioning on Affidavit differs from Questioning on Discovery, including by offering several practical examples. The case also summarizes key principles that govern the scope of Questioning on Affidavit. Moving forward, Alberta Power will likely be a common authority cited in applications to determine the validity of objections made in Questioning on Affidavit.

Questioning on Affidavit versus Questioning on Discovery

Writing for the Court, Chief Justice Wittmann explained that although Questioning on Discovery is “in the nature” of a cross-examination, it is not a “true” cross-examination as is Questioning on Affidavit.[2] This subtle distinction between the two modes of Questioning produces significant practical differences. For example, Questioning on Affidavit may involve questions that solely relate to credibility.[3] By contrast, these types of questions are generally impermissible in Questioning on Discovery.[4] Additionally, the transcript from a Questioning on Affidavit is placed before the Court in its entirety. This differs from Questioning on Discovery, in which counsel select excerpts from the transcript to “read-in” at trial.[5] These practical differences reflect the fact that the two modes of Questioning perform conceptually distinct functions in civil litigation.[6]

Principles for Questioning on Affidavit

After distinguishing the two modes of Questioning from each other, the Chief Justice then summarized the following key principles that apply to Questioning on Affidavit:

    • Questioning on Affidavit is cross-examination;
    • the scope of Questioning on Affidavit is “framed by the motion that the Affidavit is made in support of”;
    • when the motion itself is the entire law suit, such as in an Originating Notice, Questioning on Affidavit can “cover the whole lawsuit”;
    • Questioning on Affidavit may extend to matters deposed to that are irrelevant to the relief claimed; and
    • the principle of proportionality applies to Questioning on Affidavit, and undertakings ought be fulfilled if the provision of the information would not be “overly onerous” and would likely significantly help the Court determine the application.[7]

Significance

Alberta Power helps clarify how Questioning on Affidavit and Questioning on Discovery are conceptually and practically distinct. The Chief Justice also provides welcome guidance as to the scope of Questioning on Affidavit. For these reasons, Alberta Power will likely be a useful precedent for resolving objections made in Questioning on Affidavit.

1. 2017 ABQB 195 | 2. Ibid at para 24 | 3. Ibid | 4. Ibid | 5. Ibid | 6.Ibid at paras 25-26 | 7.Ibid at para 26