In this case, the Respondent applied to strike an Affidavit filed by the Applicant in support of an Application to restore an Appeal after it had been struck under Rule 530.5(4) for failure to file the Appeal Digest in time. The Respondent wished to cross-examine the Affiant but was met with limited cooperation on the part of the Appellant. When the Application to restore the Appeal came for argument, counsel for the Respondent applied to have the Affidavit struck on the basis that the Affiant did not attend for cross-examination after several attempts made on the part of the Respondent to accommodate the Affiant.

The issue on this Application became whether the Application should be adjourned to permit cross-examination on the Affidavit, or whether the Affidavit should be struck, which would mean that the Application to restore the Appeal would likely fail. In the end, Slatter J.A. adjourned the Application to permit Questioning for the following reasons:

1.      It was desirable to have the Appeal resolved on the merits;

2.      Pursuant to Rule 1.5(4), the general rule was that procedural irregularities would be tolerated if there was no prejudice that could not be compensated and, while Rule 1.5 did not strictly apply to Appeals, it reflected the common law principles that have traditionally been applied; and

3.      The failure of the Affiant to attend for Questioning was improper, and the explanation was weak; however, this was not a case where the Affiant was refusing to submit to examination, or was deliberately contemptuous of Court processes.

Based on the above, the Application to restore the Appeal was adjourned on conditions.