The Applicant appealed the decision of Application Judge Mason, dismissing its Application to compel answers to Undertakings and questions objected to during Questioning on the Affidavits of the Defendants filed in support of a Security for Costs Application under Rule 4.22.

The Defendants were questioned on two Affidavits: one by Elisha Marie Makar (“Makar Questioning”) and the other by Sameer Suleman (“Suleman Questioning”). Applications Judge Mason dismissed the application concerning the Makar Questioning but partially granted the application for the Suleman Questioning, allowing a written response to one specific question.

Justice Silver reviewed Rule 6.7, which permits cross-examination on an affidavit, along with procedural Rules 6.16 to 6.20 that pertain to that process. The Court held that the scope and intent of cross-examination on affidavits is more extensive than that of standard questioning. It further clarified that while cross-examination on an affidavit is not confined to the "four corners of the affidavit," it is not without limits and must pertain to the issues raised in the affidavit. Justice Silver emphasized that cross-examination regarding credibility is allowed, but it must still consist of reasonable questions related to the issues presented in the affidavit. Additionally, the Court noted that the individual swearing the affidavit must possess knowledge of the matters stated within it, particularly when the affidavit is executed by a corporate representative.

Justice Silver applied the foregoing legal principles to consider each question objected to and to the undertakings that were refused in the Makar Questioning and the Suleman Questioning. Justice Silver upheld the objections relating to the preparation of the Suleman and Makar Affidavits. Given the limited relevance of Suleman’s second question and Makar’s fourth question, along with concerns that further inquiries could involve privileged communications and preparatory matters, Silver J. ordered that these two questions be addressed through written interrogatories without any follow-up questions. Silver J. affirmed that Applications Judge Mason had exercised her discretion appropriately and that the Plaintiff, who had fully presented her Application, experienced no prejudice.

The Plaintiff had raised issues of procedural fairness of the hearing before Applications Judge Mason. According to the Plaintiff, the Applications Judge was not properly prepared for the hearing, did not give separate decisions for each objection, and was biased. However, Justice Silver determined that there was no evidence of bias from Applications Judge Mason, nor would a reasonable person, fully informed, find the hearing to be unfair. The Court noted that conducting the cross-examination of the affiants via an electronic platform did not violate procedural fairness, and a review of the transcripts indicated that it did not hinder the Plaintiff's ability to effectively cross-examine the affiants. Ultimately, the Court held that the Plaintiff did not demonstrate a genuine likelihood of bias and failed to prove that the hearing was procedurally unfair.