Unfair that defendants would lose right to cross-examine due to agreement reached on eve of trial

Rule provides that adverse party may be called as witness and cross-examined

Evidence - EXAMINATION OF WITNESSES - Cross-examination

Plaintiffs completed their case and did not call witness. Rule 53.07 of Rules of Civil Procedure provides that adverse party may be called as witness and cross-examined by party who called him or her. Defendants intended to call witness. On eve of trial, Pierringer agreement was signed. Defendants sought ruling on whether they would be entitled to cross-examine witness as of right in accordance with R. 53.07 of Rules of Civil Procedure. Trial fairness required that defendants were allowed to cross-examine witness as of right. Rule 53.07 had no application to situation because witness was no longer party. However, it was unfair that by agreement reached on eve of trial between plaintiff and party adverse in interest to remaining defendants that those remaining defendants should lose their right to cross-examine. Those remaining defendants had done nothing to render witness any less adverse than she was one month ago.

Jamieson v. Kapashesit (2018), 2018 CarswellOnt 22773, R.D. Gordon J. (Ont. S.C.J.).

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