1.2: Purpose and intention of these rules
1.4: Procedural orders
5.11: Order for record to be produced
6.7: Questioning on affidavit in support, response and reply to application

Case Summary

The Plaintiff made an Application for an Order allowing it to question the Defendant’s Affiant on the Defendant’s Affidavit of Records. The Defendant took the position that this could only take place with leave of the Court, and that Questioning on an Affidavit of Records does not happen as of right. Master Prowse noted that the Rules of Court are silent on this issue, but the former Rules of Court dealt with this matter expressly and allowed for Questioning on an Affidavit of Records.

Master Prowse observed that Rule 6.7 provides that any person who makes an Affidavit in support of an Application or in response or reply to an Application may be questioned under oath on the Affidavit by a person adverse in interest on the Application. Master Prowse also considered Rule 5.11(2)(b) which specifies that the Court, when deciding whether to order the production of a record on Application, may permit Questioning on the original and any subsequent Affidavit of Records. Master Prowse considered these Rules in light of the Foundational Rules, specifically Rule 1.2, which provides that the purpose and intention of the Rules is to provide a means by which Claims can be fairly and justly resolved in a timely and cost-effective way. In addition Rule 1.4 states that the Court may make an Order with respect to practice or procedure in order to implement and advance the intention of the Rules outlined in Rule 1.2. Master Prowse stated that Questioning on an Affidavit of Records does not open up the scope of examination to the extent of a general Questioning.

Master Prowse determined that the Plaintiff should be permitted to question the Defendant’s Affiant on its Affidavit of Records as of right, and the opposing party may apply to the Court if they believe the Questioning is unnecessary or abusive. The Application was granted.

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