Applicant granted permission to cross-examine affiants in relation to preservation motion

Ontario civil | Civil Procedure


Applicant granted permission to cross-examine affiants in relation to preservation motion

Police executed search warrant at residence of K and seized $17,700 Canadian in cash from vehicle parked in garage. Vehicle was registered to H. During criminal proceedings, K’s lawyer advised court that money seized belonged to K. Crown withdrew drug trafficking charges against K. Lawyer then met with civil remedies for illicit activities office that he now represented H as well and that $17,700 belonged to H not K. Lawyer served application pursuant to s. 490 of Criminal Code requesting $17,700 seized from K’s residence be released to H and return order was obtained. Applicant brought application for forfeiture of $17,700 pursuant to Civil Remedies Act and brought preservation motion. H had new lawyer who responded to preservation motion. H’s materials included affidavit sworn by former lawyer. Appended as exhibit to former lawyer’s affidavit was copy of s. 490 application record that included affidavits of H, K and H’s husband V. Applicant brought motion to compel cross-examination of deponents of exhibit affidavits. Motion granted. H was not named as respondent but she had interest in money and in preservation motion. H was party with adverse interest and her affidavit was essential part of civil application. H could be cross-examined on her affidavit, which was appended to former lawyer’s affidavit. Since new lawyer took step of filing exhibit affidavits, applicant had right to cross-examine on them. Court exercised its discretion to allow cross-examination of H, K and V on exhibit affidavits. Exhibit affidavits were not spent. This was not collateral attack against order made in s. 490 application. Applicant had to be able to meet case on merits and that must include ability to cross-examine on exhibit affidavits. Applicant was able to cross-examine deponents on any affidavit filed in proceeding, including exhibit affidavits.
Ontario (Attorney General) v. $17,700.00 in Canadian Currency (In Rem) (Jul. 3, 2015, Ont. S.C.J., Kershman J., File No. Picton 15-0175) 256 A.C.W.S. (3d) 27.

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