The decision of Perell J in Shah v. LG Chem, 2015 ONSC 776, addresses the topic of when a party should be granted leave of the court, under Rule 39.02(2), to deliver further affidavit evidence after cross-examination.

The plaintiffs commenced a class action law suit on behalf of persons in Canada who purchased lithium ion batteries or products containing these batteries. The plaintiffs alleged that a host of defendants had conspired to fix the prices of the batteries in a specific time period.

The plaintiffs brought a certification motion and a group of defendants (the “NEC defendants”) brought a motion to challenge the jurisdiction of the Court (the NEC defendants have head offices in Japan).  The NEC defendants delivered an affidavit sworn by Mr. Narita which denied that the NEC defendants sold the batteries at issue in Canada.

The plaintiffs’ responding materials contained an affidavit sworn by a law clerk, Ms. Flower, attaching public documents showing a connection between the NEC defendants and batteries sold in Canada. The plaintiffs cross-examined Mr. Narita on his affidavit and then, brought a motion seeking leave to file a further affidavit in the name of Ms. Flower.  The further affidavit set out that, in response to questioning on cross-examination, Mr. Narita gave evidence of certain sales of lithium ion batteries for use in products such as iPods and Game Boys and Motorola phones. Ms. Flower’s affidavit included historical website content which showed that these products were sold in Canada.

Rule 39.02(2) states:

(2)  A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03

Justice Perell reviewed the case law on when leave should be granted to deliver a further affidavit.  Perell J. quoted from his own text: The Law of Civil Procedure in Ontario, 2nd ed. (Markham, Ont.: Lexis Nexis Canada, 2014). When leave is sought to deliver an affidavit after cross-examination, the Court should consider:

  1. Whether the matter raised on the cross-examination was relevant to the litigation;
  2. Whether the affidavit sought to be filed is responsive to the matter;
  3. Whether allowing the delivery of the affidavit would operate unfairly against the adverse party; and, as always
  4. The Court should take a contextual approach and interpret the rules liberally so as to ensure a just and timely resolution of the dispute. 

Justice Perell reviewed the case law on Rule 39.02(2), which indicates that leave should be granted sparingly and that the Rules should not be used as a mechanism for correcting deficiencies in motion materials.  The moving party has a high threshold to meet on a motion for leave to file further evidence.

Rule 39.02 exists to place limits of the evidentiary elements of litigation and to prevent an endless exchange of affidavits and cross-examinations.  It underlies the obligation of the parties to put their best foot forwards (from an evidentiary perspective) on a motion and it should only be relied upon in exceptional cases.  The requirement that a party put his best foot forwards when embarking on a cross-examination is an approach designed to ensure the “just, most expeditious and least expensive determination of motions and applications”.

In the within case, Perell J. found that while the further evidence tendered by the plaintiffs did rebut the evidence given by the defendants, the evidence was not very important to the plaintiffs’ case with respect to the Court’s jurisdiction, which meant that the plaintiffs had a weak case for arguing that they met the high threshold required to obtain leave of the Court.   Perell J. was also not persuaded that the further evidence could not have been produced at first instance.

Perell J. dismissed the plaintiff’s argument that to allow further evidence would be in the interests of justice because the court would be prejudiced by missing relevant evidence on the basis that the Court cannot be prejudiced by enforcing the rules of civil procedure and the law of evidence.  

Rarely do I argue a motion of any substance in which a party does not seek to tender further evidence after cross-examinations. Often, in my experience, that evidence is admitted by the Court, with some commitment to give it little weight, as untested evidence.  I will be keeping a copy of this case in my litigation bag for use on future motions.