T-5836-79
Bunker Ramo Corporation and Bunker-Ramo
(Canada) Ltd. (Plaintiffs)
v.
TRW Inc., Renfrew Electronic Marketing Lim
ited and Westburne Industrial Enterprises Ltd.
(Defendants)
Trial Division, Cattanach J.—Ottawa, March 13
and 27, 1980.
Practice — Service — Order for service of notice of state
ment of claim ex juris — Motion by defendant for leave to
cross-examine affiant in the ex parte application for service ex
juris — Whether affiant can be cross-examined — Whether
matter at an end once application is heard and the order is
granted — Whether Judge has discretion in allowing leave to
cross-examine — Federal Court Rules 330, 332(5).
The present motion brought on behalf of the defendant TRW
Inc. arises as a consequence of an order for service ex juris of a
notice of the statement of claim on the defendant, following
upon an ex parte application therefor on behalf of the plain
tiffs. The motion of TRW Inc. seeks leave to cross-examine the
affiant upon certain of the allegations made therein with the
ultimate objective to set aside the order for service. What
appears to be sought to be contested is the jurisdiction of the
Court over the subject matter of the action pleaded in the
statement of claim. The request to cross-examine the affiant
was made to the solicitors of the plaintiffs and was refused. The
defendant then requested a subpoena from the Administrator of
the Registry Office of the Court in Toronto which was refused
on the ground that the application was heard, the order was
granted and therefore the matter was at an end; the right to
cross-examine is gone when the litigation of the moment was
over. The defendant submitted that in the case of an ex parte
application the litigation of the moment was not over until the
right to set aside the order had expired.
Held, the motion is allowed and the affiant is ordered to be
produced for cross-examination on his affidavit. There is au
thority to order cross-examination on the affidavit after a
review of the Appeal Court decision in Province of Newfound-
land v. Churchill Falls (Labrador) Corp. Ltd. and of the case
of Volckmar v. Krupp on the ground that the application to
rescind the grant of the ex parte order is a continuation of the
same proceeding and not a new and separate proceeding. Under
Federal Court Rule 332(5) leave to cross-examine is not
required from which it follows that a party has the right to
cross-examine the person who made an affidavit as of right.
Therefore no question of discretion by the Court is involved.
Province of Newfoundland v. Churchill Falls (Labrador)
Corp. Ltd. 15 Nfld. & P.E.I.R. 77, agreed with. Volckmar
v. Krupp [1958] O.W.N. 303, agreed with. Catholic Pub
lishing Co. v. Wyman (1862-63) 11 W.R. 399, disagreed
with.
MOTION.
COUNSEL:
R. Gray, Q.C. for plaintiffs.
A. J. Lenczner and G. Clarke for defendant
TRW Inc.
SOLICITORS:
Herridge, Tolmie, Ottawa, for plaintiffs.
McCarthy & McCarthy, Toronto, for defend
ant TRW Inc.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The present motion brought on
behalf of TRW Inc., named in the style of cause as
a defendant arises as a consequence of an order
dated December 13, 1979 for service ex juris of a
notice of the statement of claim herein on the
defendant, TRW Inc., following upon an ex parte
application therefor on behalf of the plaintiffs.
The motion presently brought seeks a number of
things but, perhaps, the ultimate objective is to set
aside the order for service on the defendant, TRW
Inc., out of the jurisdiction.
By virtue of Rule 330 any order that was made
ex parte may be rescinded. The use of the word
"may" in the Rule imports a discretion. Accord
ingly the party who so moves has the onus upon it
of establishing that it is proper that the order
should be rescinded.
Rule 307 prescribes the conditions precedent to
the grant of an order for service ex juris and the
contents of the order when granted.
As also prescribed the application was supported
by an affidavit establishing these conditions.
As a step to what I conceive to be the defend
ant's ultimate objective it seeks leave to cross-
examine the affiant upon certain of the allegations
made therein.
This I take to be a prelude to an application by
the defendant seeking rescission of the order for
service ex juris. In my view an application to that
end must be supported by affidavit evidence estab
lishing why the order should be discharged. With
this counsel for the applicant agrees but carries the
matter a step further. While acknowledging that
on the ex parte application for service ex juris all
conditions were established he went on to state
that if the deponent of the affidavit on which grant
of the order was based can be shown to have been
in error that might affect the propriety of the
grant. In short he is saying that the allegations
should be subjected to and meet the test of
cross-examination.
The defendant's motion is fourfold.
The first request is that the plaintiffs be obliged
to produce the affiant of the supporting affidavit
at a time and place to be agreed upon to be
cross-examined on his affidavit.
This request was first made to the solicitors for
the plaintiffs and was refused.
On such refusal the solicitors for TRW Inc. then
requested a subpoena from the Administrator of
the Registry Office of the Court in Toronto,
Ontario which was refused on the ground that the
application was heard, the order was granted and
therefore the matter was at an end. The logic is
sound, depending on the original premise adopted
and the Administrator has not been alone in so
reasoning although there is no decision of this
Court on the point of which I am aware.
Faced with those two refusals the solicitors were
forced to resort to the first ground of its present
motion, that is leave to cross-examine the affiant.
Naturally a defendant when it invokes the pro
cesses of the Court must enter an appearance.
With this end in view in the second phase to its
motion, as paragraphs 2 and 3 of the notice of
motion read, it is that leave be granted to enter a
conditional appearance for the purpose of contest
ing the jurisdiction of this Court.
As those paragraphs read in the notice of motion
they are susceptible of being so interpreted. If that
be the case the request for such an order and the
request to invoke the processes of the Court would
be mutually incompatible.
That interpretation of paragraphs 2 and 3 of the
notice of motion is confirmed in the affidavit of
Norman S. Rankin in support of the motion in
paragraphs 3 and 4 of that affidavit. In paragraph
3 the affiant swears that the jurisdiction of this
Court is to be contested with respect to matters
raised in the statement of claim.
Thus it would appear that what is sought to be
contested is the jurisdiction of this Court over the
subject matter of the action pleaded in the state
ment of claim against the defendant TRW Inc.,
and not the Court's jurisdiction over the person of
TRW Inc.
If the latter were the case it would be reasonable
to assume that the defendant would have sought
leave under Rule 401 to enter a conditional
appearance for the purpose of objecting to the
service of the notice of the statement of claim and
of the jurisdiction against the defendant TRW
Inc., which has not been specifically done.
If it is the jurisdiction over the subject matter of
an action which is to be contested there is no
practical need to seek leave to enter a conditional
appearance. No question of attornment to the
jurisdiction arises. That is accepted.
If it is jurisdiction over the person, rather than
subject matter, that is to be contested then differ
ent considerations might well prevail if resort to
Rule 401 paragraph (b) should not be adequate as
would appear to be the case from the language of
the notice of motion.
The third and fourth orders sought are both in
the alternative (1) that the order for the service ex
juris be set aside, or (2) that the service of the
notice of the statement of claim on the defendant,
TRW Inc. be set aside.
On the basis of the foregoing remarks the sub
stance of which was expressed orally at the hearing
of the motion I proffered the view that the leave
sought to enter a conditional appearance to contest
the jurisdiction of the Court was incompatible with
the order sought for leave to cross-examine on the
affidavit upon which the order for service was
based.
It was also my view expressed at that time that
the alternative remedies sought were premature
and not sufficiently supported by affidavit
evidence.
I made the gratuitous suggestion that the orders
sought in paragraphs 2, 3, 4 and 5 of the motion
might be withdrawn and that the hearing be devot
ed exclusively to the request for the order to
require the attendance of the affiant of the sup
porting affidavit to allow for cross-examination
thereon. It became abundantly clear that the
reason for such order was to form the basis of an
order to strike out the order for service ex juris.
I am of the view that a motion made at trial or
before to set aside service as being improperly
effected cannot be construed as a waiver of any
irregularity in the service and accordingly cannot
be construed as attorning to the jurisdiction by
appearing. This, in my belief, is the common law.
Rule 401 embodies a restatement of that law and
is not intended to be an exhaustive codification
thereof.
If such was the objective sought by paragraphs 2
and 3 of the notice of motion and that objective
was consistent with paragraphs 3 and 4 of the
supporting affidavit a great deal of effort might
have been avoided by a straight forward invocation
of paragraph (b) of Rule 401.
Thus I am now left with the crux of this matter
which is simply this:
Is there authority to make an order requiring the affiant of the
affidavit in support of the order for service ex juris to attend
for cross-examination on that affidavit?
In Volckmar v. Krupp [1958] O.W.N. 303, the
plaintiff obtained leave for service on the defend
ant out of the jurisdiction based on an affidavit of
the plaintiff. The defendant was moving to set
aside the order and sought an order to cross-exam
ine the plaintiff on his affidavit leading to the
Master's order permitting such cross-examination
stating that "it was admitted that the affidavit in
question would be used to support the impeached
order of the master". (There was no such admis
sion in the present application.) Therefore it was
an affidavit to be used in the motion and prima
facie the defendant was entitled to cross-examine
on it.
It was stated that in the ex parte application
leading to the order there was no opportunity to
cross-examine.
Reference was made to Holmested to the effect
that when the proceeding in which the affidavit is
filed has been disposed of the right to cross-exam
ine was gone and to The Catholic Publishing Co.
v. Wyman (1862-63) 11 W.R. 399 per Wood V.C.
stating that the right to cross-examine is gone
when the litigation of the moment was over.
That certainly was the reasoning adopted by
Mr. Preston in refusing the request for a subpoena.
However it was stated that in the case of an ex
parte application the litigation of the moment was
not over until the right to set aside the order had
expired.
The order was therefore granted to cross-exam
ine on the affidavit.
On appeal the order was confirmed by Wells J.,
as he then was.
In the Province of Newfoundland v. Churchill
Falls (Labrador) Corp. Ltd. (1977) 13 Nfld. &
P.E.I.R. and 29 A.P.R. 421 the plaintiff obtained
an ex parte order for service of a writ of summons
out of the jurisdiction after the service of which
the defendant, Quebec Hydro, appeared for an
order for the attendance and cross-examination of
the deponent of the affidavit used in support of the
plaintiff's application.
The matter came before Goodridge J. on. Janu-
ary 26, 1977 who held that the defendant was not
entitled to cross-examine the deponent, where the
matter in which the affidavit was used was closed
but that cross-examination would be available on
that affidavit only if it was used in a subsequent
proceeding to set out the order.
He said this at pages 431, 432:
Turning now to item 2, the second defendant seeks to cross
examine Mr. Hickman on his affidavit pursuant to Order
XXXIV, Rule 1. This is easily disposed of. The rule reads as
follows:
1. Upon any motion, petition, or summons, evidence may be
given by affidavit; but the Court or a Judge may, on the
application of either party, order the attendance for cross-
examination of the person making any such affidavit.
The affidavit of Mr. Hickman was presented in support of an
application made ex parte for an order for service out of the
jurisdiction. That application was heard, the order was granted
and the matter is at an end.
The second defendant now proposes to move for an order to
discharge that order. It is a new motion, a new hearing, and not
a continuation of the original application.
In the hearing of the motion, the second defendant may, and
probably should, present evidence by affidavit showing why the
order should be discharged. The deponent in such affidavit may
be cross-examined. In answer to the motion the plaintiff may
rely on a fresh affidavit, or several fresh affidavits, using or
ignoring the original affidavit, as it chooses, but the deponent in
any affidavit on which the plaintiff relies may be cross-exam
ined.
As the motion to discharge the order has not yet been made
and as I do not know at this point whether or not the plaintiff
intends to rely on the affidavit of Mr. Hickman in opposition to
the motion, I cannot at this point make the order sought that
Mr. Hickman be examined on his affidavit.
In Strauss v. Goldschmidt (1891-92), 8 T.L.R. 239, the
court, while refusing an application to cross-examine, said that
it would make such an order where necessary. However, in that
case the defendants gave notice that they would be relying on
an earlier affidavit in support of their motion to discharge an
order for service ex juris and the deponent thereby became
subject to cross-examination.
There is no doubt that a deponent may be cross-examined if
his affidavit is being used to support or oppose an application,
but not otherwise.
The same question was renewed and again con
sidered by Goodridge J. in Province of Newfound-
land v. Churchill Falls (Labrador) Corp. Ltd.
(1978) 16 Nfld. & P.E.I.R. and 42 A.P.R. 460, on
May 12, 1977. He had this to say at pages 471,
472:
Under Order XXXIV, Rule 1, upon a motion, evidence may
be given by affidavit and the court may order the attendance of
the deponent for cross-examination.
Jurisdiction to order such attendance in this respect is con
fined to deponents who have given evidence on a motion by way
of affidavit. It does not extend to deponents who gave evidence
by affidavit in an earlier application, ex parte or otherwise.
I am aware that I did not follow the decision in Volckmar v.
Krupp, [1958] O.W.N. 303, where cross-examination on an
affidavit tendered to support an ex parte application was
permitted on a motion to set aside that order. In that case, as in
Strauss v. Goldschmidt (1891-92), 8 T.L.R. 239, it was admit
ted that the original affidavit would be used to support the
order on the motion to discharge it.
In the Volckmar case, however, the court went farther than
in the Strauss case and said that in the case of an ex parte
application, the issue is not over until the right to set aside the
order has expired.
I cannot extend such reasoning to the rules of this court
where the jurisdiction to require the attendance of a deponent is
confined to these deponents whose affidavits have been used on
the motion before court.
The ex parte application and the motion to discharge are two
separate proceedings. While the same principles apply to the
making of a decision in each situation, the second is a new
matter and not a continuation of the first.
The second defendant may argue that, on the basis of the
original affidavit, or on the basis of facts supported by affida
vit, the order ought not to have been made. If the original
affidavit, or any other affidavit is used, in opposition to the
motion, then the deponent may be cross-examined. That is in
the discretion of the court, an observation which as I have said,
I unfortunately omitted when I made my first order.
Goodridge J. distinguished Volckmar v. Krupp
and Strauss v. Goldschmidt (to which he also
referred) on the ground that "it was admitted that
the original affidavit would be used to support the
order on the motion to discharge it".
I have previously mentioned that no such admis
sion was forthcoming in the present matter.
But Goodridge J. did not accept the statement in
Volckmar v. Krupp that [at page 304] "In the case
of an ex parte application the litigation of the
moment was not over until the right under Rule
217 [in this instance Federal Court Rule 401] to
set aside the order has expired." [The insertion in
parenthesis is mine.]
Rather he said and I repeat for emphasis:
The ex parte application and the motion to discharge are two
separate proceedings. While the same principles apply to the
making of a decision in each situation, the second is a new
matter and not a continuation of the first.
This decision of Goodridge J. (that is 16 Nfld.
& P.E.I.R. and 42 A.P.R. 460 and not 13 Nfld. &
P.E.I.R. and 29 A.P.R. 421 as incorrectly stated in
the headnote to the judgment of the Court of
Appeal) was appealed. The judgment of the Court
of Appeal was given on March 3, 1978 and is
reported in (1978) 15 Nfld. & P.E.I.R. and 38
A.P.R. 77.
In the reasons of Gushue J.A., reference is made
to the order of Goodridge J. followed by this
reference (see 13 Nfld. & P.E.I.R., 29 A.P.R.
421). This note in parenthesis would have been
inserted by the editor of the report and not by
Gushue J.A. (I surmise the Court reference should
have been to 16 Nfld. & P.E.I.R. and 42 A.P.R.
460.)
The first matter was heard by Goodridge J. on
January 7, 1977 and judgment was delivered on
January 26, 1977.
The renewed application was heard by Good-
ridge J. on March 11, 1977 and he delivered
judgment on May 12, 1977.
The appeal was heard on October 28, 1977 and
judgment was delivered on March 3, 1978.
The confusion arises in that the Court of Appeal
decision is reported in 15 Nfld. & P.E.I.R. and 38
A.P.R. 77 and the second judgment of Goodridge
J. is reported in 16 Nfld. & P.E.I.R. and 42
A.P.R. 460 which is a later volume. The only
explanation I can hazard is that the judgment of
Goodridge J. on the renewed application was
reported after the judgment of the Court of
Appeal had been given and which had been report
ed earlier.
Gushue J.A. delivered the unanimous decision
on behalf of the Court of Appeal. He had this to
say at pages 83 and 84:
Before getting into the main grounds of appeal (although it is
one of the grounds of appeal), the question arises as to whether
the learned trial judge should have allowed counsel for Hydro-
Quebec the right to cross-examine the Attorney-General, Mr.
Hickman, on the affidavit made by him, and based on which
the Chief Justice made his ex parte order. Counsel bases his
argument upon the provisions of Order 34, Rule 1 which states
that:-
Upon any motion, petition, or summons, evidence may be
given by affidavit; but the Court or a Judge may, on the
application of either party, order the attendance for cross-
examination of the person making any such affidavit.
The learned trial judge held that the rule was not applicable
and in my view he was technically correct. Order 34, and this
particular rule, is concerned with the utilization of affidavit
evidence in court and chambers hearings inter partes, and not
with affidavits used in ex parte applications. However, in my
further view, the right to order cross-examination still remained
with the learned judge. Being a review of an order granted ex
parte which order was not one of course to which the applicant
was entitled as of right, I have no doubt that on such hearing
the sitting judge has the discretionary power to order cross-
examination on any affidavit previously relied on in the matter
if he is satisfied that there is a valid reason for doing so.
The motion to discharge is a review of an ex parte order
which is an extension of the normal right of review because it
provides for such before appearance by the defendant. It is
perhaps more usual for the judge who granted the ex parte
order in the first instance to hear the inter partes motion to
strike out (although there is certainly nothing improper with
another judge hearing it), and in my view he is still exercising
his discretion on the basis of the evidence submitted by both
parties as to whether he will allow the earlier order to stand. It
is thus not an appeal, but an extension or review of the first
application and in my view the judge can order cross-examina
tion if he deems it necessary.
In my view Gushue J.A. rejects the conclusion
of Goodridge J., contrary to that in Volckmar v.
Krupp that the ex parte application and the
motion to discharge are two separate proceedings
and the motion to discharge is not a new matter
but is rather a continuation of the first when he
said:
... the right to order cross-examination still remained with the
learned trial judge
and when he said: •
The motion to discharge is a review of an ex parte order
which is an extension of the normal right of review because it
provides for such before appearance by the defendant
and
It is thus not an appeal, but an extension or review of the first
application ... .
As I appreciate the language of Gushue J.A. it
is an adoption of the reasoning in Volckmar v.
Krupp to the effect that the application to rescind
the grant of the ex parte order is a continuation of
the same proceeding and not a new and separate
proceeding.
I therefore conclude that the judgment of
Gushue J.A. and that in Volckmar v. Krupp are
authority for the proposition that there is the right
to order cross-examination on the affidavit submit
ted in support of the ex parte order for service out
of the jurisdiction in a subsequent application to
rescind that order. In its present application the
defendant, TRW Inc., seeks to set aside that order
but the hearing of that application is premature if
cross-examination on the affidavit is ordered.
Thus I conclude that there is authority to order
cross-examination on the affidavit.
Having so concluded the next question which
arises is whether I have a discretion in the matter.
In Province of Newfoundland v. Churchill Falls
(Labrador) Corp. Ltd., Gushue J.A. stated that
such a discretion was vested in Goodridge J. and
that the learned Trial Judge had properly exer
cised that discretion.
The Newfoundland Rule upon which the
application for leave to cross-examine was based is
Order 34, Rule 1 which was quoted in the extract
from the reasons of Gushue J.A. previously quoted
but is repeated here for convenience:
Upon any motion, petition, or summons, evidence may be given
by affidavit; but the Court or a Judge may, on the application
of either party, order the attendance for cross-examination of
the person making any such affidavit.
The pertinent Rule of the Federal Court Rules
is Rule 332(5) which reads:
Rule 332... .
(5) Any person making an affidavit that has been filed may
be required to appear before a prothonotary, or any other
person specially appointed by a prothonotary or the Court, or
agreed upon by the parties for that purpose, to be cross-exam
ined thereon; and the attendance of such person may be
enforced by subpoena (Rule 333). Two clear days' notice of
such cross-examination is to be given by the cross-examining
party to the opposite party.
Under the Newfoundland Rule leave to cross-
examine must be by application of a party to the
Court. Since leave is required that necessarily
imports a discretion to grant such leave.
Under Federal Court Rule 332(5) leave is not
required from which it follows that a party has the
right to cross-examine the person who made an
affidavit as of right. Therefore no question of
discretion by the Court is involved.
Accordingly it is ordered that James R. Stokes
should be produced for cross-examination on his
affidavit sworn on December 7, 1979 and used in
support of the ex parte order for service on the
defendant, TRW Inc., out of the jurisdiction
granted on December 13, 1979 at a time and place
to be agreed upon between the plaintiffs and the
defendant, TRW Inc.
It is not appropriate that there should be any
order for costs either for or against the plaintiff or
the defendant, TRW Inc., at this time.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.