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

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]


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.

Putting Your Best Foot Forward in Summary Judgment Applications

In P. Burns Resources Limited v. Honourable Patrick Burns Memorial Trust, 2015 ABCA 390, the Court of Appeal of Alberta confirmed that there is no “default position” that document production and questioning procedures should be put on hold pending an application for summary judgment or summary dismissal.

The Respondent trustee brought an action for oppression against the Appellants and sought document production. The Appellants then applied for summary dismissal of a part of the action, and the Respondent sought to cross-examine on the Appellants’ affidavit of records and to conduct questioning in accordance with Part 5 of the Alberta Rules of Court, AR 124/2010. The Master set aside the appointments for questioning and cross examination, and in so doing, stated that:

… one might as well remove the summary judgment provisions of the Rules of Court if a respondent is entitled, as of right, to insist on the usual production of documents and questioning (discoveries) prior to the hearing of a summary judgment application. [3]

Subsequently, the Respondent trustee issued appointments for questioning on the Appellants’ corporate representative related to the balance of the claim which was not part of the summary dismissal application. In response the Appellants expanded their application for summary judgment to the entire claim and refused to attend the appointments. The Respondents then sought an order compelling attendance before the same Master. Again, the Master declined to grant the order, stating that there should not be document production or discoveries when a summary judgment hearing is pending.

The Court of Queen’s Bench disagreed, and after hearing the appeal, overturned both of the Master’s orders. In overturning the Master, the chambers judge noted that the Master made:

… no inquiry into the nature of the action, or the nature of the application, but proceeded on the basis that, in the face of a summary dismissal application or an application for summary judgment, the rules related to questioning and document production should be put on hold. [5]

The Court explained that while parties are required to “put one’s best foot forward in summary applications”, and cannot oppose an application for summary dismissal by arguing that some evidence supporting its claim may arise through discovery or document production, there are instances where “the Defendants have all of the knowledge and all of the documents related to the Plaintiff’s claim [and] the situation cries out for an analysis of what disclosure is necessary or reasonable before the summary judgment application goes ahead”.

The Court of Appeal upheld the decision of the Queen’s Bench judge, and noted that the decision to allow document production and questioning prior to summary judgment applications is discretionary. In all circumstances, the discretion to allow discovery must be in compliance with the purpose of Part 5 of the Rules, and in particular, Rule 5.1(1), which discourages “conduct that unnecessarily or improperly delays proceedings or unnecessarily increases their costs”. In situations where a great deal of the supporting evidence is in the possession of the opposing party, then it is more likely that an applicant will require disclosure of documents and discoveries to be able to put their best foot forward in a summary judgment application.

Contesting a Will: Grounds & Onus of Proof

Testamentary incapacity and undue influence are common grounds to contest the will of a deceased testator. The former refers to the testator’s lack of the necessary mental ability to execute the will, while the latter describes the influence of another person in making the will such that it does not genuinely reflect the testator’s own wishes.

The Supreme Court of Canada decision of Vout v. Hay, [1995] 2 S.C.R. 876, remains a leading case in this regard.

With respect to testamentary capacity, Vout stands for the principle that if the will was signed with the requisite formalities (by a testator who appeared to understand it) it will generally be presumed that she knew and approved of the will’s contents and had the necessary testamentary capacity.

This presumption is rebuttable if it can be shown on a balance of probabilities that there were “suspicious circumstances” leading to execution of the will. These include circumstances surrounding the preparation of the will (e.g. a beneficiary was in the room when the testator signed the will), circumstances that question the capacity of the testator (e.g. she left her property to a stranger rather than family), and circumstances suggesting that the free will of the testator was overborne by acts of coercion or fraud.

If suspicious circumstances are established, the onus reverses to the proponents of the will to prove testamentary capacity. This can be accomplished through evidence such as medical records (e.g. capacity assessment reports from medical professionals that examined the deceased around the time the will was signed) and statements from the deceased’s family, friends and neighbours that the testator was of sound mind.

The onus is always on those attacking the will to prove undue influence. Though the standard remains the balance of probabilities, recent case law in Alberta indicates that the evidentiary standard is rising. Suspicion and speculation is not enough; direct evidence is required. An example of such evidence is a statement from a witness that he saw someone threaten the deceased financially or physically to change her will.

Look who’s talking: Collaboration in the authorship of expert reports

The Ontario Court of Appeal has reaffirmed the propriety of effective consultation between counsel and expert witnesses.

In Moore v Getahun, 2015 ONCA 55, the plaintiff was injured in a motorcycle accident. Prior to surgery, his wrist was placed in a cast which resulted in the plaintiff suffering from compartment syndrome. At trial, the central issue was whether applying a full cast to the plaintiff’s wrist was below the standard of care, and whether the cast caused the compartment syndrome.

Experts were retained to provide medical reports on the above issues. During cross-examination, one expert testified that he produced and discussed his draft and final report with counsel who provided advice on the report. The trial judge criticised these actions and stated that these discussions breached an expert’s duty of impartiality. The judge found that it was improper for counsel to assist an expert witness in preparation of the expert’s report. This view was challenged on appeal.

The Ontario Court of Appeal concluded that the trial judge erred in ruling that it is unacceptable for counsel to review and discuss draft expert reports, although this did not affect the overall decision of the court.

At paragraph 49, the Court of Appeal discussed Ontario Rules of Civil Procedure Rule 53.03, stating that it is:

“Widely accepted that consultation between counsel and expert witnesses in the preparation of Rule 53.03 reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims.”

Further, Rule 4.1.01(1) specifically states that an expert witness has a duty to “provide opinion evidence that is fair, objective, and non-partisan.” This evidence should be seen as the independent product of an uninfluenced party which provides independent and unbiased assistance to the court.
In Moore, the changes made by the expert at the direction of counsel were relatively minor, and were aimed at improving clarity of the report. The Court stated that banning discussions between counsel and expert witnesses or mandating that all communication be documented is contrary to well-established precedent. These discussions may be necessary in highly technical areas of the law when an expert requires an increased level of instruction and consultation. Proper communication is vital to the expert being able to communicate effectively to the court.

There are a number of factors that foster an expert witness’ independence, including: professional standards forbidding counsel from engaging in practices that may interfere with this objectivity, ethical standards requiring members of professional bodies to be impartial when giving expert evidence, and the tool of cross-examination during the trial process.

Finally, at para 65, the Court stated:

“Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner. Such a rule would encourage the hiring of “shadow experts” to advise counsel. There would be an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay. “

Just as judges require the assistance of expert witnesses, these expert witnesses require the assistance of lawyers to frame their evidence in a comprehensive and responsive manner. As such, these discussions are to be permitted.

Fairness Over Form In Billing For Legal Services

The Alberta Court of Queen’s Bench recently emphasized the public importance of judicial oversight in billing for legal services – in essence, a form of consumer protection regulation—in Stubbard v Hajduk Gibbs LLP, 2014 ABQB 632.

In Alberta, billing for legal services is subject to the Alberta Law Society’s Code of Conduct and the Alberta Rules of Court. Section 206(1) of the Code provides that a lawyer’s charges must be fair and reasonable. Rule 10.2(1) states that, except to the extent a retainer agreement otherwise provides, a lawyer is entitled to be paid a reasonable amount. Rule 10.5 allows a lawyer and client to agree to billing at a different rate than would be determined under Rule 10.2, again subject to reasonableness. Rule 10.7 outlines requirements specific to a contingency agreement, which include that it must be in writing, be signed by the client (in the presence of a witness) and lawyer, contain certain particulars, and be served on the client.

In other words, notwithstanding parties’ right to contract, the court has inherent jurisdiction to review agreements and billing for legal services for reasonableness The regulation of contingency agreements is particularly pointed.

Stubbard involved the review of lawyers’ charges in a divorce action. In 2005 the client and her counsel entered into a retainer agreement for billing on a flat fee or hourly basis. In 2010, the firm discovered that it did not have a signed copy of the agreement and took steps to formalize and change it – by lowering the hourly fee and adding a contingency component by which the firm would be entitled to 35% of the matrimonial property and spousal support awards if the matter required a trial or settled within 12 days of trial (the firm had estimated the client’s matrimonial property claim as between $900K to $2.4M).

The parties then executed the 2005 agreement, adding a footnote stating that the document replaced the 2005 agreement and was effective retroactive to 2005, and attaching a second document by which the client agreed to enter into the revised terms of retainer. The formalized 2010 agreement, however, was never executed.

The client applied to a review officer for a taxation of accounts. She had been billed $71,000 cumulatively, was still married, and the issue of matrimonial property had yet to be resolved. The review officer sought a reference from the Court of Queen’s Bench.

Counsel for the law firm argued that contracts for legal services are enforceable in accordance with their terms regardless of criteria for assessment under the Rules, relying on Steinke v Hajduk Gibbs LLP, 2014 ABQB 34 and Samson Cree Nation v O’ Reilly & Associés, 2014 ABCA 268.

The Court distinguished the Steinke and Samson decisions and discussed legal fees, legal fee contracts, and public policy at some length (paras. 19‑26). The Court noted that the basis for taxation rules is the uneven bargaining position between lawyer and client, and insisted on this basis that — even where there is an agreement to contract out of the Rules, and even if the Rules permit such an agreement — there must still be oversight, and it is the overarching duty of the Court to view work performed through the filter of reasonableness.

While the Court concluded that it could and would distinguish Steinke and Samson, it was not necessary to do so because neither the 2005 nor the 2010 agreement took effect – the 2005 agreement having been replaced in its entirety, while the 2010 agreement failed to meet the Rules’ requirements for contingent fee agreements. On this basis, the Court directed the review officer to ignore both the 2005 and 2010 agreements and to tax the client`s account based on the criteria in Rule 613 of the former Rules of Court (in force at the time of the lawyer’s appointment).

Ultimately, the Court rejected any notion that contractual terms in a retainer agreement oust the Court’s inherent jurisdiction to review accounts for fairness in the context of assessment Rules, or what it considered is “clearly consumer protection regulation” (paras. 21‑24).

Heed The Colon

In Canadian Natural Resources Limited v. ShawCor Ltd., 2014 ABCA 289, the Alberta Court of Appeal has again revisited a party’s obligation to sufficiently describe privileged documents in its affidavit of records in civil litigation proceedings.

While perhaps evident to most civil litigators, the use of a colon following individual grounds of privilege included in Schedule 2 of the standard form of affidavit of records (Form 26) is deliberate, intended to introduce a list of specific documents meeting a particular ground of privilege as a result of which otherwise producible documents have not been disclosed. Grounds of privilege in the standard form include:

  1. without prejudice communications:
  2. communications and copies of communications between solicitor and client:
  3. solicitors work product, including all interoffice memoranda, correspondence, notes, memoranda and other records prepared by the solicitors or their assistants:
  4. records made or created for the dominant purpose of litigation, existing or anticipated:
  5. other: (provide particulars of objection relied upon)
  6. records that fall into 2 or more of the categories described above:

The colon is a punctuation mark used to explain or start an enumeration, to be contrasted with its cousin the semicolon which separates independent clauses in a sentence or items in a list. The grounds of privilege in Schedule 2 of the affidavit of records are not a list in and of themselves; rather, they are intended to introduce an enumerated list of producible but privileged records in the possession or control of a party to a civil action.

The common practice of treating grounds enumerated in Schedule 2 as a comprehensive list of otherwise unidentified documents – often with an all‑inclusive reference to counsel’s complete file – is no longer adequate, if it ever was. This practice fails to meet the requirements to disclose all relevant and material records in accordance with Rule 5.6 of the Alberta Rules of Court.

Privileged records must “provide sufficient description of a record claimed to be privileged to assist other parties in assessing the validity of that claim”.

Relevant and material documents are prima facie producible. So, yes, you do have to identify with some specificity any relevant and material but otherwise privileged records in possession of a party. Identifying information, including names or other specific information protected by the privilege need not be disclosed.

Interestingly, there will be very few instances where the entire contents of a solicitor’s file will be relevant and material as to be producible in any event. A record, question or information is relevant within the meaning of the Rules (R. 5.2) when it could reasonably be expected “to significantly help determine one or more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleading”.

Most of the records or information included in the typical solicitor’s file will not meet this description. For example, as much as I would like my opinion of law provided to a client to determine the issues in the action, regretfully that opinion in fact has no bearing on a court’s determination of the issues as to be producible absent some material admission of a relevant fact in the document.

The same can be said for many of the items described in Schedule 2 of Form 26, including without prejudice communications, solicitor’s work product and the like. Again, unless facts relevant to the case are admitted in the document, settlement communications, inter-office memoranda or records prepared by legal assistants will rarely be relevant and material as to be producible.

More commonly, it is subparagraph (d) that will apply in most cases, requiring a party to identify records “made or created for the dominant purpose of litigation”, usually in the form of factual recitations from a client to her or his counsel or the fruits of expert investigation.

The Alberta Court of Appeal’s treatment of these issues in CNRL v. ShawCor Ltd. is not new law, but a reminder of a party’s obligations of disclosure and the fallacy of relying on precedents or standard forms in lieu of independently assessing the purpose and function of a legal document.