The recent decision of Falsetto v. Falsetto, 2023 ONSC 1351, offers an excellent reminder of the potential pitfalls of how evidence is put before the court in an Application. Although the decision offers an excellent analysis of a rather unique situation involving constructive trusts and the Planning Act which may warrant a blog in its own right, it was not the main legal issues which caught my attention. Rather, it was the court’s refusal to allow one of the parties to file any additional affidavit evidence after they had cross-examined an adverse party.

I have previously blogged about the general availability of cross-examinations on affidavits in an Application, and the potential pitfalls of Rule 39.02(2) of the Rules of Civil Procedure. Rule 39.02(2) generally provides that you are unable to serve any additional affidavits in an Application once you have cross-examined an adverse party on their affidavit absent the consent of the parties or leave of the court. As Falsetto shows, such leave is not always given.

In Falsetto one of the parties attempted to serve an additional affidavit before this final hearing after having previously cross-examined an adverse party on their affidavit. In ultimately refusing to provide leave to serve additional affidavit evidence, the court cites to the test in First Capital Realty Inc. v. Centrecorp Management Services Ltd., which provides the following analysis for the court to consider before providing leave:

1. is the evidence relevant;
2. does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time;
3. would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment; and
4. did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset.

Falsetto provides an excellent reminder the court will not always provide leave to serve additional affidavits once you have cross-examined an adverse party. Great attention should be paid to making sure you have served affidavits containing any evidence you could ever intend to rely upon before your cross-examine an adverse party as there is no guarantee you will be able to serve additional affidavits after the fact.

Thank you for reading.

Stuart Clark