“When considering the difference between examinations for discovery and cross-examinations on an affidavit, I always start with the seminal decision of MacKinnon ACJO in Chitel et al. v. Rothbart et al., 1982 CanLII 1956 (ON CA). The Associate Chief Justice reminded the profession that although the two procedures look alike, they are not the same. MacKinnon ACJO wrote:
Counsel seemed to have confused, in part at least, the right to limit “fishing expeditions” on examination for discovery with a severe limitation on the extent of proper cross-examination. Counsel at trial would not, on any and every pretext, seek to frustrate proper examination. If he did, he would be quickly corrected by the trial judge. Because a judge is not present does not mean that a counsel, who is an officer of the court, should take a different position. He should not answer some obviously significant question himself before the witness answers, unless it is done by agreement with counsel for the other side, nor lead his witness immediately after the witness has given a damaging answer to explain the answer. Nor should he interrupt and prevent, time after time, questions from being answered although a legitimate ground has been given for their being asked. It seems to me that this is so in all cases, but particularly where ex parte injunctions have been granted. In such cases the matter is one of urgency which should be determined as quickly as possible by the court without the party restrained being forced to bring interlocutory motions and appeals in order to get the answers of the deponent to relevant questions. I have digressed to a certain extent but I think it important that a practice not develop which would debase the value of the right to cross- examine and effectively frustrate its legitimate purpose.
Discovery, as discussed below, is compelled disclosure of private information. However, as discussed by MacKinnon ACJO, cross-examination out of court on an affidavit is different. It replicates a cross-examination on sworn evidence in open court.”
It appears to me that counsel for the wife was penalized for being sarcastic, although it was acknowledged repeatedly by the judge that the husband and his lawyer were jacking around the wife and her lawyers. The result is that the husband got what he wanted, with no consequences. it certainly appears to me that there should have been a costs award against the husband. Further, the reasons are far too long – very repetitive.