Scope of Cross-Examinations for Applications and Motions

In Sanctuary et al v. Toronto (City) et al, 2020 ONSC 4708, the court outlined the principles applicable to cross-examinations of a deponent of an application or motion. These principles include:

• The scope of a cross-examination of a deponent for an application or a motion is narrower than an examination for discovery.
• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence.
• A question asked must be a fair question.
• The scope of cross-examination in respect of credibility does not extend to cross-examination to impeach the character of the deponent.
• The deponent who deposes on information and belief may be compelled to inform himself or herself about the matters deposed. 
• The “semblance of relevance” standard no longer has application. The standard is now “relevance”.
• In determining whether a question is relevant, the key factor is whether an answer could be relied on by a trier of fact to determine an issue on the motion.
• Unlike an examination for discovery, a deponent is only required to provide information that is within his or her personal knowledge.
• The deponent may be asked relevant questions that involve an undertaking to compel information.