A-668-95

B E T W E E N:

     EDWARD YORKE and MARGOLA SHUCHAT

     Appellants

     " and "

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Respondent

     REASONS FOR ORDER

STRAYER J.A.

     The respondent has applied for an order to strike out a direction for the respondent's counsel to attend and to be cross-examined by the appellants on an affidavit dated April 3, 1997. That affidavit was filed in support of a motion by the respondent to have the appeal struck out for dilatoriness.

     I am issuing an order to strike out this direction. Firstly, it is an abuse of the process of this Court. The respondent's affidavit merely recites the facts of delays in this appeal. Briefly put, although the appellants have had the appeal books since November, 1996 they have not yet filed a memorandum of fact and law. All the facts of delay, with one small exception, are already discernible from the court file. On its face, the "Direction to Attend", which calls for an "examination for discovery", specifies documents to be produced, none of which have any apparent connection with the issue on which the affidavit was filed, namely the appellants' delays.

     Secondly rule 332.1, under which the direction was apparently issued, provides that a party cannot cross-examine on an affidavit until he has filed all his own affidavits. Rule 1209(3) which authorizes the respondent's motion for dismissal of the appeal for dilatoriness requires the appellants to file an affidavit explaining the delay, if they wish to resist the application. The appellants have failed to file such an affidavit in the several weeks which have ensued since the respondent filed the dismissal motion on April 4, 1997. Thus the appellants have neither taken the proper steps to oppose the motion for dismissal or to meet the pre-condition for cross-examination, namely by filing their own affidavit.

     Therefore the respondent's motion to strike will be granted.

                                 J.A.