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Cross-examination of an Affiant is not necessarily a right by all persons adverse in interest

Summary

In the fall of 2019, the Alberta Court of Appeal (the Court) released its fifth procedural decision in Alberta’s Reference re Greenhouse Gas Pollution Pricing Act (the Reference).1 The decision was in response to an application by the intervenor, the David Suzuki Foundation (DSF), to cross-examine Alberta’s affiant, Mr. Robert Savage, on his affidavit. While the Court had already granted Canada and British Columbia permission to cross-examine Mr. Savage on his affidavit, DSF argued it should also be permitted as its cross-examination would relate specifically to the issue of a climate emergency.

Justice Slatter dismissed DSF’s application on the grounds that DSF had not proven that the benefit of its cross-examination would outweigh the cost, that DSF had not established that such cross-examination would materially assist the Court, and that Canada and British Columbia will cross-examine the affiant on all essential points. This decision is a reminder to litigants in multi-party litigation that the basic principles of admissibility of evidence apply to cross-examinations, and that cross-examination on an affidavit by all participants is not automatic.

Background

In June 2018, the federal government introduced the federal Greenhouse Gas Pollution Pricing Act (the Act).2 The Act forms the legislative foundation for the federal carbon tax. Pursuant to the Act,the federal carbon tax applies in provinces without equivalent legislation to ensure that Canada adequately addresses its climate change obligations. We provided the details of the Act in a previous blog. Saskatchewan, Ontario, Manitoba and Alberta challenged the federal carbon tax regime.

The first decision relating to this litigation was released on May 3, 2019, whereby the Saskatchewan Court of Appeal ruled by a 3:2 majority that the federal carbon tax is a valid use of the federal government’s jurisdiction to legislate on matters of national concern under its peace, order, and good government power. We provided the details of this decision in a previous blog. Shortly thereafter, on June 28, 2019, the Ontario Court of Appeal released its decision in Reference re Greenhouse Gas Pollution Pricing Act,3 whereby a majority of the Ontario Court of Appeal held that the Act is constitutional for similar reasons as in the majority decision of the Saskatchewan Court of Appeal.

On June 20, 2019, the Alberta Lieutenant Governor in Council initiated the Reference here at the Alberta Court of Appeal. By the fall of 2019, the Alberta Court released five procedural decisions relating to Reference. In this article, we consider the Court’s fifth procedural decision to dismiss DSF’s application for leave to cross-examine Alberta’s affiant, Mr. Savage, on his affidavit.

DSF, an intervenor, sought leave to cross-examine Mr. Savage on matters relating to its specific argument that Parliament has a rational basis to apprehend a national climate emergency. The specific matters which DSF sought to cross-examine Mr. Savage on included Alberta’s emission intensity, any steps Alberta took to reduce emissions to show that provincial inaction led to the federal government apprehending a climate emergency, and the efficacy of the Act. DSF argued that, pursuant to Rule 6.7 of the Alberta Rules of Court,4 a person adverse in interest is permitted to cross-examine on an affidavit. DSF compared this to subsection 26(4) of the Judicature Act,5 which provides that interested persons are “entitled to be heard at the hearing” of a reference.

The Court’s Decision

The Court acknowledged that while references are broader in scope than ordinary litigation, various principles are weighed in deciding whether to permit the application. Such factors include, among others, the presumptive right to cross-examine on affidavits and the role of intervenors in raising new issues, assisting the court and providing fresh expertise. Overall, the Court asked whether DSF’s cross-examination “is likely to assist in creating a platform for useful submissions that will bring a different perspective or expertise to the subject matter of the appeal, and assist the Court in deciding the issues.”6

The Court emphasized that the basic principles of admissibility of evidence apply to cross-examination. Accordingly, DSF had to show that its cross-examination evidence would have high probative value that outweighed any cost such as expense and delay. The Court found that the benefits obtained by DSF’s cross-examination compared to the costs would be small, particularly as Canada’s and British Columbia’s cross-examination should cover all relevant points. The Court also noted that DSF’s three proposed topics of cross-examination were not highly proximate nor highly relevant to the legal issues. Notably, the Court further held that the third issue risks “diverting the argument,”7 given that the overarching issue is not whether the Act provides a better solution than a potential program proposed by Alberta, rather whether the Act is unconstitutional.

Implications

Pursuant to this decision DSF, a person adverse in interest, was not permitted to cross-examine an affiant, Mr. Savage. This decision is a reminder to litigants in multi-party litigation that the basic principles of admissibility of evidence apply to cross-examinations, and that cross-examination on an affidavit is not a right held by all participants. Participants desiring to do so have to make a case for it in accordance with the factors set out by the Court of Appeal in this case. We will be monitoring the Reference and will provide further updates.


1 Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361.

2 SC 2018, c 12, s 186.

3 2019 ONCA 544.

4 AR 124/2010.

5 RSA 2000, c J-2.

6 Reference at para 9.

7 Reference, para 15.

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