Is a party's failure to cross-examine a witness on their affidavit admissible at trial?

Ontario, Canada


The following excerpt is from Oudeh v. Prior-Oudeh, 2021 ONSC 3718 (CanLII):

The respondent submits that a party's failure to avail themself of an opportunity to cross-examine a witness on their affidavit is not a reason for the court to question its admissibility or weight. This is especially so where the challenging party has led no evidence to contradict the affiant. In Reisman v. Reisman, 2014 ONCA 109, 118 O.R. (3d) 721, at paras. 62-69, Laskin J.A. found that a trial judge made no error by admitting affidavit evidence at trial where the challenging party: a. had several opportunities to cross-examine the affiant, but did not do so; and b. had notice that the affiant was not going to be called as a witness at trial.

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