QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 348 Date: 2013 09 24 Docket: Q. B. No. 1206 of 2012 Judicial Centre: REGINA BETWEEN: THE CROWN HAND PUB LTD. and BANK OF AMERICA CORPORATION, BMO FINANCIAL GROUP, BANK OF MONTREAL, BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, CAPITAL ONE FINANCIAL CORPORATION, CITIGROUP INC., FEDERATION DES CAISSES DESJARDINS DU QUEBEC, MASTERCARD INTERNATIONAL INCORPORATED, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, TORONTO-DOMINION BANK, and VISA CANADA CORPORATION DEFENDANTS Docket: Q. B. No. 133 of 2013 Judicial Centre: REGINA BETWEEN: HELLO BABY EQUIPMENT INC. and BOFA CANADA BANK, BANK OF MONTREAL BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, CAPITAL ONE BANK (CANADA BRANCH), CITIGROUP INC., FEDERATION DES CAISSES DESJARDINS DU QUEBEC, MASTERCARD INTERNATIONAL INCORPORATED, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, TORONTO-DOMINION BANK and VISA CANADA CORPORATION Counsel: Reidar Mogerman and Jennifer Winstanley for the plaintiff Michael Eizenga and Robert Staley for the Bank of America Corporation Katherine L. Kay for the Bank of Montreal (agent), Bank of Nova Scotia (agent) and Canadian Imperial Bank of Commerce Claire Hunter and Eileen Patel(by telephone) for Capital One Michael Adlem for Citigroup Inc. Chantal Chatelain and Amanda Quayle for Federation des caisses Desjardins du Quebec Jeffrey Simpson for Mastercard Randy C. Sutton for National Bank of Canada Andrew Borrell for Royal Bank of Canada Alexandra Cocks for Toronto-Dominion Bank Robert Leurer and Robert Kwinter for Visa Canada FIAT BALL J. September 24, 2013 [1] This fiat deals with three applications two by the plaintiff The Crown Hand Pub Ltd., the other by the plaintiff Hello Baby Equipment Inc. to cross-examine on affidavits filed in relation to applications to stay and/or for carriage of these class action proceedings. [2] Merchant Law Group (“MLG”) has commenced proposed class action against the defendants in Saskatchewan as Q.B.G. 1206 of 2012. The action, which names The Crown Hand Pub Ltd. as the proposed representative plaintiff, will be referred to as “the MLG Action”. [3] Two law firms (Branch McMaster LLP and Camp Fiorante Mathews Mogerman, both of Vancouver, B.C.) (the “Consortium”) have commenced proposed class action in Saskatchewan as Q.B.G. 133 of 2013. That action, which names Hello Baby Equipment Inc. as the proposed representative plaintiff, will be referred to as the “Consortium Action”. [4] The MLG Action and the Consortium Action raise the identical issues of fees paid by merchants in connection with Visa and Mastercard credit card transactions. There are five other credit card class actions advancing the same claims in other Canadian jurisdictions: one in Ontario (Bancroft Snell v. Visa Canada Corporation, OSCJ No. VC-11-426591 CP (Toronto) (the “Ontario Action”); one in British Columbia [Watson v. Bank of America Corporation, SCBC No. VLC-S-S-112003 (Vancouver) (the “BC Action”); one in Quebec [9085-4886 Quebec Inc. and Bakopanos v. Visa Canada Corporation, Superior Court of Quebec No. 500-06-00549-101 (Montreal) (the “Quebec Action”); and two in Alberta [Macaronis Hair Club and Laser Centre Inc., operating as Fuze Salon v. BofA Canada Bank, Alberta QB File No. 1203-18531 (Edmonton] (the “Consortium Alberta Action”) and [1023926 Alberta Ltd. v. Bank of America Corporation, Alberta Q.B. File No. 1203-10620 (Edmonton) (the “MLG Alberta Action”)]. [5] On April 4, 2013, the Consortium Alberta Action and the MLG Alberta Action were conditionally stayed by the Alberta Court of Queen’s Bench pending the decision of the Supreme Court of British Columbia in relation to an application for certification of the BC Action. The certification application in the BC Action was heard between April 22, 2013 and May 2, 2013 by Chief Justice Bauman and the decision is currently under reserve. [6] By application filed January 4, 2013 and amended June 20, 2013, MLG applied for certification of the MLG Action. On April 12, 2013, the Consortium applied for orders granting them carriage of the proceedings in Saskatchewan and staying the MLG Action. Filed in support of the Consortium application are affidavits sworn by: i. Luciana Brasil, lawyer representing the plaintiff in the Consortium Action; ii. Jonathan Bancroft-Snell, proposed representative plaintiff in parallel class action brought by the Consortium against the same defendants in Ontario; and iii. Amy Habicht, the principal of Hello Baby Equipment Inc. [7] On July 12, 2013, the defendants applied for an order staying the MLG Action and all similar actions pending the decision of Chief Justice Bauman of the Supreme Court of British Columbia on the application for certification of the BC Action. In support of their application for stay, the defendants have filed the affidavit of Amy K. Gaskin, the head of the defendant Visa Canada Corporation’s legal department. APPLICATIONS TO CROSS-EXAMINE ON AFFIDAVITS [8] MLG brings two applications. The first is for leave to cross-examine each of Luciana Brasil, Jonathan Bancroft-Snell and Amy Habicht on their affidavits. The second is for leave to cross-examine Amy K. Gaskin on her affidavit. The Consortium application, filed after the two MLG applications, is for leave to cross-examine Steve Patrick, the owner of The Crown Hand Pub Ltd., on an affidavit sworn June 18, 2013. Mr. Patrick’s affidavit was filed by MLG in opposition to the Consortium’s application for carriage. [9] Rule 6-13 of The Queen’s Bench Rules provides: 6‑13(1) On any application or petition, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross‑examination of the person making the affidavit. (2) The party applying for any cross‑examination pursuant to subrule (1) shall bear the costs of the cross‑examination. [10] Leave to cross-examine on an affidavit filed in support of an interlocutory application is discretionary matter. The applicant must demonstrate that cross-examination will assist in resolving the issue before the court and that it will not result in an injustice. Leave will generally be permitted where there is contradictory evidence or where there is sincere and legitimate need for clarification of information that is solely within the knowledge of the affiant (Canada Safeway Ltd. v. Saskatchewan (Human Rights Commission), (1993) 1993 CanLII 9112 (SK QB), 108 Sask. R. 253, [1993] S.J. No. 122 (QL)). These general principles apply to cross-examination on all affidavits filed in support of interlocutory applications, including applications for certification under The Class Actions Act, S. S. 2001, c. C-12.01 (the “Act”). [11] In Hoffman v. Monsanto Canada Inc., 2003 SKQB 564 (CanLII), 242 Sask. R. 286, G.A. Smith J. (as she then was) noted that there are number of characteristics of applications for certification under the Act that weigh in favour of granting leave to cross-examine. The court noted that pursuant to s. of the Act, certification order is not determination of the merits of an action and, for that reason, cross-examination going solely to the merits of the plaintiff’s claim is not permissible. Even so, the court emphasized the importance of providing, on certification motion, proper evidentiary record for the resolution of the issues raised by the application, including clarification of ambiguous evidence, expanding or narrowing the scope of what is said in an affidavit, or exploring matters going to the credibility of the affiant. The fundamental questions are whether the proposed cross-examination will be relevant and of some assistance in the ultimate determination of the issues. [12] Although the court in Saskatchewan has been inclined to grant leave to cross-examine deponents on affidavits filed on certification applications to ensure that it is presented with an adequate evidentiary record, leave to cross-examine is not granted routinely or automatically. There have been number of decisions in which the court has decided that cross-examination will not be permitted. See, for example, Thorpe v. Honda Canada Inc., 2010 SKQB 136 (CanLII), 352 Sask. R. 89; Wall Estate v. Glaxosmithkline, 2010 SKQB 351 (CanLII), 367 Sask. R. 21; Alves v. MyTravel Canada Holidays Inc., 2009 SKQB 517 (CanLII), 348 Sask. R. 1. [13] Applications for leave to cross-examine on affidavits must take into account the purpose for which the affidavits are filed and the effect of resulting order. Here, the affidavits have not been filed in relation to an application for certification. The affidavits of Luciana Brasil, Jonathan Bancroft-Snell and Amy Habicht have been filed in support of the application for orders staying the MLG Action and granting the Consortium carriage of the claims against the defendants. The affidavit of Amy K. Gaskin has been filed in support of the defendants’ application for an order temporarily staying the MLG Action. The affidavit of Steve Patrick has been filed in opposition to the Consortium’s application for stay and carriage. [14] By and large, the affidavits filed by the Consortium in respect of its application for carriage and stay orders, and by the defendants in support of their application for stay, deal with the progress of the credit card class action litigation in this and other jurisdictions. The information is uncontroverted and a matter of public record. Mr. Merchant was unable to explain how and why it might assist the court to have him cross-examine on what is not in dispute. [15] The affidavits filed by the Consortium also set out its intended approach to managing credit card class action claims in the various jurisdictions across Canada. In particular, they indicate that the Consortium intends to pursue its claim initially in British Columbia (a no-cost jurisdiction) followed by its claim in Ontario (an opt-out jurisdiction). While Mr. Merchant speculates that this is “suspicious” and indicates “secret agreement”, there is no evidence supporting that view. Moreover, it is contradicted by his own beliefs that the defendants intend to fully defend the claims in every jurisdiction. [16] The applications by MLG set out number of matters the proposed cross-examinations would explore. The overall thrust would be to engage Amy Habicht, the principal of Hello Baby Equipment Inc., Jonathan Bancroft-Snell, the operator of an art gallery acting as representative plaintiff in the Ontario Action, one of the Consortium lawyers, Luciana Brasil, in examinations for discovery respecting their solicitor client communications or their opinions regarding purely legal issues such as the implications of recent Competition Tribunal Decision and the reasons for interlocutory decisions in other jurisdictions. Even if the affidavits raised these issues, they would not be the subject of useful cross-examination. [17] The affidavit of Amy Habicht, the principal of Hello Baby Equipment Inc., asserts her support for the Consortium as her counsel. Similarly, the affidavit of Steve Patrick, the owner of The Crown Hand Pub Ltd., asserts his support for MLG as class counsel. Both affidavits are based on what each of the affiants have been told by their respective counsel. In my view, cross-examination on what they have been told, and about their individual opinions related to the qualities of their respective counsel, would add nothing to the evidentiary record. [18] Finally, at least two of the affidavits (the affidavit of Luciana Brasil and the affidavit of Amy K. Gaskin) contain legal argument that does not belong in an affidavit, but in brief of law. It is unacceptable for legal counsel to present argument in the form of an affidavit, but it does not follow that by doing so, the affiant lawyer becomes obliged to open up his or her client files for review by third parties, nor examined for discovery with respect to their proposed legal strategies, nor required to debate the merits of future legal arguments by way of cross-examination. MLG has applied to strike portions of the affidavits, and that application will be heard on date to be set by the Local Registrar in consultation with the parties. [19] The arguments presented during the hearing of these applications dealt exclusively with the two applications by MLG to cross-examine on affidavits filed by the Consortium and the defendants. No submissions were made by any party in respect of the Consortium’s application to cross-examine Steve Patrick on his affidavit in opposition to those applications. However, it is apparent that if MLG’s applications to cross-examine the various affiants are dismissed, then the defendants’ application to cross-examine Mr. Patrick must also be dismissed. [20] In summary, the MLG applications for leave to cross-examine on the affidavits is dismissed for the following reasons; 1. I am not satisfied that MLG’s desire to question the deponents is based on a real and sincere need to clarify any issues relevant to the applications for which the affidavits have been filed. 2. The answers to questions arising from the sought-after cross-examinations would be of no assistance to the court’s inquiry into issues raised by the applications on which the affidavits have been filed. 3. Virtually all of the reasons cited by MLG to support the request to cross-examine the affiants focus, not on evidentiary issues, but on the relative merits of legal issues. [21] For the same reasons, the Consortium’s application to cross-examine Steve Patrick on his affidavit, sworn June 18, 2013, is dismissed. [22] There will be no order as the costs.
HELD: The Court dismissed the application. The information contained in the affidavits was uncontroverted and a matter of public record. MLG was unable to explain how cross-examination would assist the Court. As well, the application to cross-examine did not appear to rest on a real need to clarify any issues relevant to the application for which the affidavits had been filed and focused on the relative merits of legal issues rather than on evidentiary issues.