Civil Litigation - Testimony. Greenberg v. Nowack
In Greenberg v. Nowack (Ont CA, 2016) the Court of Appeal addressed the treatment of oral testimony given in a motion heard by affidavits:
 The contempt hearing was conducted in a summary manner. The motion judge did not invite oral testimony. Mr. Nowack, who was self-represented, had filed no evidence. He did, however, make submissions as to why he failed to provide an accounting.
 Rule 39 requires evidence on a motion to be adduced by affidavit, cross-examination on an affidavit, the examination of a witness pending a motion, or by oral testimony at the hearing of a motion with leave.
 The motion judge adverted to the fact that no evidence had been put forward by Mr. Nowack in response to the contempt motion. He stated, at para. 43 of his reasons, “[b]efore the hearing, [Mr. Nowack] did not provide any affidavit evidence. At the hearing, Mr. Nowack, who had been sworn to tell the truth at earlier attendances, attempted to offer an explanation for his failure to provide the accounting.” The motion judge accordingly appears to have treated Mr. Nowack’s oral submissions as evidence.
 While the motion judge may well have been entitled to consider Mr. Nowack’s submissions as evidence, relying on the fact that he had previously been sworn as a witness, he ought to have informed the Greenbergs’ counsel that this was what he was doing, and afforded him the opportunity to cross-examine Mr. Nowack. I accept that the Greenbergs were taken by surprise by the motion judge’s apparent acceptance of Mr. Nowack’s brief explanation in his oral submissions as to why he had failed to comply with the outstanding orders. In these circumstances, to the extent that the motion judge relied on Mr. Nowack’s explanation to conclude that the Greenbergs had not met the test for contempt, he erred in doing so.