Executive Summary: Key Legal and Evidentiary Issues

• Mr. Bell sought leave to cross-examine Mr. Ball on his supporting affidavit filed as part of his application opposing the Court's jurisdiction on the basis of forum non conveniens

• Jurisdictional dispute centered on whether Newfoundland and Labrador courts have jurisdiction simpliciter over a claim involving a UK-based defendant with no business or personal connections to the Province of Newfoundland and Labrador or the Dominion of Canada

• The Court applied the framework from Tucker v. Unknown Person, 2014 NLCA 36, to assess whether cross-examination was necessary, relevant, and appropriate in the circumstances

• Allegations of falsehoods and fabricated evidence in Mr. Ball's affidavit were raised but failed to give any specific examples tied to the jurisdictional question

• Proportionality concerns weighed against permitting cross-examination that would effectively serve as a fact-finding expedition on the merits of the claim

• Costs were in the cause on a Column III basis following denial of the application

Background of the dispute

Kim N.I. Bell, appearing on his own behalf, is a plaintiff holding a PhD in Aquatic Ecology who lives in the City of St. John's, Newfoundland and Labrador. He initiated proceedings against Johnathan Ball, a resident of the County of Suffolk and a citizen of the United Kingdom. Mr. Ball has no business or personal connections to the Province of Newfoundland and Labrador or the Dominion of Canada. The underlying relationship involved Mr. Bell conducting patent paperwork, including working towards a worldwide patent, while Mr. Ball conducted the necessary engineering and refrigeration drawings. Mr. Ball's counsel acknowledged, on behalf of his client, that Mr. Bell carried out patent work for Mr. Ball's company in the UK and was paid for his services, but that at no point was there any contract that was made in the Province of Newfoundland and Labrador.

The jurisdictional challenge

Mr. Ball applied to stay the proceedings under Rules 6.07(7) and Rule 10.05 of the Rules of the Supreme Court, 1986, arguing that there is "no real and substantial connection" of Mr. Bell's claim against him to the jurisdiction of the courts of Newfoundland and Labrador. As an alternative argument, Mr. Ball posited that should the Court find that it does have jurisdiction simpliciter, then it should exercise its discretion under the doctrine of forum non conveniens and decide in favour of the matter being heard in the UK courts. Mr. Ball had not filed a Defence and brought an interlocutory application to dispute the jurisdiction simpliciter of the Supreme Court of Newfoundland and Labrador to adjudicate Mr. Bell's claim.

Mr. Bell's application to cross-examine

As part of perfecting his response to Mr. Ball's interlocutory application on jurisdiction, Mr. Bell sought leave to cross-examine Mr. Ball on his supporting affidavit of May 16, 2025. Mr. Bell sought this leave on the grounds that the affidavit ostensibly contains falsehoods that are built upon a foundation of fabricated evidence aimed at besmirching his character. Oral argument on the leave application occurred over two days — January 15, 2026, and February 11, 2026 — at the request of Mr. Bell so as to permit him to consider the legal issues that needed to be addressed in his oral response. Late in the day before the continuation of oral argument, Mr. Bell also filed another interlocutory application asking the Court to strike Mr. Ball's forum non conveniens application under Rules 14.24(1)(a) and 14.24(1)(b), but the Court was not prepared to hear that application and informed Mr. Bell it would decide the leave issue first.

The legal framework for cross-examination on affidavits

Justice Peter N. Browne considered the applicable rules and jurisprudence governing cross-examination in the context of interlocutory applications. Under Rules 29.09 and 48.10 of the Rules of the Supreme Court, 1986, the presumption is that evidence in support of an application will be presented by way of affidavit or statutory declaration, with leave of the Court required to present viva voce evidence. The onus lies on the party seeking leave to cross-examine an affiant to overcome that presumption and show that cross-examination is necessary and appropriate in the circumstances. The Court relied on the framework established in Tucker v. Unknown Person, 2014 NLCA 36, which identified three key considerations: whether the facts in the affidavit are in issue; whether cross-examination is necessary to challenge the facts deposed to in the affidavit; and whether the affidavit is contentious or the statements deposed to are in dispute. The Court noted Tucker is an effective consolidation of the law respecting leave for cross-examination, and cited supporting authorities including Beanland v. Beanland, Newfoundland (Attorney General) v. Churchill Falls (Labrador) Corp., and Memorial University of Newfoundland v. Oleynik, 2023 NLSC 126, which held that cross-examination in the context of an application is not intended to serve as a fact-finding or discovery investigation.

The Court's analysis and reasoning

Justice Browne found that the general allegations of omissions and deficiencies within affidavits as outlined in the Reply filed by Mr. Bell failed to give any specific examples and failed to indicate how the affidavits were contentious, or how the statements deposed to were in dispute regarding the issue of whether the Court should assume jurisdiction or defer to the courts in the UK. The Court noted that an opposing party is not expected to present exhaustive detail addressing every pleading or fact, and that Mr. Ball's position was made quite clear throughout his affidavit that there was no contract that originated in Newfoundland and Labrador. In fact, Mr. Ball went further and stated that he has no contract with Mr. Bell at all as Mr. Bell has been paid in full for the services he provided to his company. The Court commended Mr. Bell for the extensive preparation that led to his oral argument on this procedural issue, including his detailed affidavit and Memorandum of Fact and Law. However, after listening to the argument provided by both parties, the Court concluded there is no serious dispute over the facts as they pertain to the issue of the Court's exercise of its discretion to accept or to decline jurisdiction to hear Mr. Bell's claim. The Court found that permitting Mr. Bell to cross-examine Mr. Ball would only open the door to what would amount to a fact-finding expedition on the merits of his claim, and that this type of questioning would more properly be left to discovery or other forms of disclosure and production.

Ruling and outcome

Justice Browne denied Mr. Bell's application for leave to cross-examine Mr. Ball on his affidavit. The Court felt that it could proceed with its forum non conveniens analysis based on the record which included an extensive affidavit filed by Mr. Bell. Costs were in the cause on a Column III basis. No specific monetary amount was awarded or ordered at this stage, as this was a procedural ruling on the leave issue, and the substantive issue of jurisdiction and the application to strike remained to be heard.