Bruce v. MacQuarie Premium Funding Inc., 2010 ONSC 2236 (CanLII) (Master) (Rule 1.04 – proportionality; Rule 39.02 – cross-examination on an affidavit)
Judgment Released: April 15, 2010 Link to Judgment
On a motion to compel re-attendance to answer questions refused on a cross-examination on an affidavit, the Court rejected the argument that the new Rules concerning proportionality and the scope of relevance in discovery narrow the scope of cross-examinations on an affidavit under Rule 39.02. The Court noted that the new Rules encourage the court and counsel to take a reasonable and practical approach to procedural issues, particularly surrounding discovery and production, but do not eliminate Rule 39.02 and the surrounding case law establishing that the scope of cross-examination on an affidavit must be relevant to the issues raised by the motion and the affidavit material. Proportionality is not a substitute for the test of relevance but it is the “boundary line” to keep the court and counsel considering issues of cost, time and prejudice. Proportionality is not intended as a shield to cross-examination on an affidavit.