Royal Bank of Scotland plc v. The "Golden Trinity" et al.

This motion considered the scope of cross-examination on affidavits of claim in a proceeding to determine priorities. The Prothonotary reviewed the various authorities relating to the issue and noted that the authorities supported both a narrow approach and a broad approach, depending on the context. The Prothonotary borrowed concepts from both approaches to arrive at some broad general principles as to the proper scope of cross-examination on affidavits of claim in a priorities hearing. First, cross-examination on affidavits must have factual underpinnings in the deponent’s affidavit, in other affidavits filed, in answers giving rise to collateral questions or in the documents attached to affidavits or otherwise produced. Second, the deponent of an affidavit of claim is an agent for and swears the affidavit on behalf of a party or claimant. He or she therefore has a duty to inform himself or herself. The duty to inform is not akin to what would be required on an examination for discovery but is bounded by relevance and whether the inquiry would be unduly onerous. Third, the production of documents on a cross-examination is governed by Rules 87 (Examinations out of Court), 91(2)(c) (Production for inspection at examinations), and 94 (Production on examinations). The documents must be relevant and in the possession, power and control of the person being examined, however, the scope is not as broad as discovery of documents. The scope is limited by relevance, the amount of material requested and whether it would be unduly onerous to require production.