222 THE ADVOCATE
VOL. 78 PART 2 MARCH 2020
ify whether an application must or should be brought before filing a
response to civil claim. Accordingly, an application for a dismissal order
may be brought before or after filing a response.
As previously mentioned, the court must assess whether the applicant
has a valid defence in the proceeding. If an application for a dismissal order
is brought after the applicant has filed a response to civil claim, the applicant’s
defences are detailed in the response. If an application for a dismissal
order is brought before the applicant files a response to civil claim, the court
has very little information, outside of the application materials, with
respect to the applicant’s potential defences. As the application for a dismissal
order is not for a hearing on the merits of the main action, the court
may have little information on the applicant’s defences by way of the application
materials. However, if the applicant has filed a response to civil claim
before filing an application for a dismissal order, the applicant may open
himself up to being cross-examined on his defences.
Right of Cross-Examination on Affidavit
In B.C., there is normally no cross-examination on affidavits as of right.
However, s. 9 of the PPPA permits cross-examination of a witness on the
witness’s affidavit, subject to the restrictions on the duration of the crossexamination
provided in the PPPA. The PPPA does not define the scope of
Recently, in Galloway v. A.B.,22 the B.C. Supreme Court considered
whether the plaintiff was entitled to request information and documentation
on a cross-examination conducted under s. 9(5) of the PPPA, and if so,
the extent of disclosure, when challenging the defendant’s application to
During the course of the cross-examination permitted under the PPPA,
the plaintiff requested documents. At issue was whether the production of
documents sought during the cross-examination was a “further step in the
proceeding”. The plaintiff argued that without disclosure, he would not be
able to satisfy the burden placed on him by s. 4(2), which required him to
demonstrate: (1) that the lawsuit had substantial merit; (2) that the defendants
had no valid defence; and (3) that the harm he had suffered as a result
of the defendants’ expression was serious enough to outweigh the public
interest in protecting that expression.
The B.C. Supreme Court observed that while the aim of the PPPA is to
provide defendants with an expedient process to have unmeritorious
actions dismissed, the “the flip side cannot be to deprive a plaintiff with a
valid cause of action the ability to proceed”.23 The court ordered production,
directing it to occur before the hearing of the PPPA application. This ruling
is currently under appeal.