Written By David Gruber, Roy Lou and Larissa Sakumoto
In British Columbia, cross-examination on affidavits in the context of pre-trial applications is not as of right, as is the case in many other Canadian jurisdictions. Absent agreement, a party seeking to do so in B.C. litigation must apply to the Court, which retains discretionary power. B.C. practitioners have generally accepted, as a conventional understanding, that such applications succeed only where there is a conflict in affidavit evidence. The B.C. Court of Appeal's recent decision in Stephens v Altria Group, Inc., 2021 BCCA 396 departs from this conventionally understood principle, holding that such cross-examination may be permitted where there are conflicting material facts, which may be grounded in pleadings as well as affidavit evidence.
The respondents, Jaycen Stephens and Owen Mann-Campbell (the Representative Plaintiffs), filed a class action lawsuit against the appellant, Altria Group, Inc. (Altria), and other manufacturers (the Defendants) of JUUL e-cigarettes (the Class Action).The Class Action alleges, among other things, that: (1) defendants misleadingly advertised JUUL e-cigarettes as a safer alternative to traditional cigarettes, causing a nicotine use epidemic among youth; and (2) Altria and other JUUL e-cigarette manufacturers conspired to market and sell their products.
As a part of the Class Action, Altria brought an application to challenge the B.C. Supreme Court's jurisdiction over the dispute. Altria filed two supporting affidavits denying any involvement in marketing and selling JUUL e-cigarettes in Canada, and denying the conspiracy claim (the Altria Affidavits). The Representative Plaintiffs applied to cross-examine the affiants of the Altria Affidavits.
The B.C. Supreme Court's Decision
The B.C. Supreme Court case management judge granted the Representative Plaintiffs' application to cross-examine the affiants of the Altria Affidavits.
The Case Management Judge adopted the test set out in Greenwood v Greenwood,  BCJ No 846 (BCSC), for cross-examining an affiant on their affidavit evidence. The Greenwood test sets out three factors to be considered when determining whether to permit cross-examination on affidavit evidence:
- whether there are material facts in issue;
- whether the cross-examination is relevant to an issue that may affect the outcome of the substantive application; and
- whether the cross-examination will serve a useful purpose in terms of eliciting evidence that would assist in determining the issue.
The Court of Appeal's Decision
Altria appealed and the Court of Appeal affirmed the Case Management Judge's decision.
The Definition of a Material Fact in Issue
On Appeal, Altria argued that the Case Management Judge failed to apply the first element of the Greenwood Test and therefore erred by adopting a lower threshold for ordering cross-examination on affidavit evidence. Altria advanced the commonly held viewpoint that cross-examination on affidavits in pre-trial applications requires a conflict in affidavit evidence, arguing that the contrary viewpoint arises from a conflicting line of minority decisions including Greater Vancouver Water District v SSBV Consultants Inc., 2014 BCSC 1148, which suggest that a conflict in affidavit evidence is not required to order cross-examination on affidavits.
The Court of Appeal rejected Altria's argument in favour of the contrary position and upheld the Case Management Judge's adoption and application of the Greenwood test. The Court of Appeal held that the key question, per Greenwood, is whether there is a "material fact in issue" and that in fact, conflicting affidavit evidence is not required. In doing so, the Court of Appeal appears to have opened the door to permitting cross-examination on affidavits where a conflict in material issue arises from pleadings, rather than strictly the affidavit evidence.
Altria further argued that the Case Management Judge erred in finding that material facts were at issue in the Altria Affidavits as the Representative Plaintiffs failed to plead the conspiracy allegation against Altria in their notice of civil claim. The Court of Appeal rejected this argument, holding that pleadings must be assessed as a whole to determine the material facts in issue, and that there was such a material issue in the present case: the Representative Plaintiffs had plead that Altria was involved in a conspiracy with the other Defendants, which conflicts with Altria's affidavit evidence.
The Court of Appeal's holding in Stephens v Altria Group, Inc. departs from the commonly held principle understood by many B.C. practitioners that a party seeking to cross-examine on affidavits in pre-trial application may only do so where there is a conflict in affidavit evidence. The Court of Appeal instead favoured a broader, more lenient test: cross-examination is permissible where there are conflicting material facts, and these facts may be grounded in both pleadings and affidavit evidence. A direct conflict in affidavit evidence is not required.