What is the test for granting leave to cross-examine the facts in both an affidavit and a Statement of Claim?

A critical issue is whether the facts in the affidavit are in issue, or whether cross-examination is necessary to challenge the facts in the affidavit: See Tucker v. AXA General Insurance 2014 NLCA 36 at para. 27, per White J.A. I may have been inclined to grant leave if Plaintiff’s counsel had taken issue with the facts in the affidavits. In fact, the statements and allegations in the Statement of Claim are generally consistent with the circumstances outlined in both affidavits.

It is also clear that any such examination must be directly relevant to issues in the Application before the court. See Ontario v. Rothmans Inc., 2011 ONSC 2504 at paras. 142-143 per Perell, J. Any questions must be relevant to the issues on the particular motion, or on the matters raised in the affidavit. Since on the record there was no dispute on the contents of the affidavits, questioning would not add anything to the determination of issues in the application.