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Monday Morning Case Bites for February 24, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Westman v Elger, 2020 ABQB 125
Summary Trial | Affidavit | Expert Report

This was a Summary Trial for an assessment of personal injury damages that ended up being adjourned to permit counsel to submit improved Affidavit evidence. The Plaintiff swore an Affidavit which included expert reports as exhibits. The Court expressed concern with this approach to introducing expert evidence:

[9]               My main concern was that it was intended that the judicial assessment of Mr. Westman’s personal injury damages would be made on the basis of unsworn expert evidence.  I suggested that exhibiting the medical records and doctors’ opinions to Mr. Westman’s affidavit did not make them sworn evidence.

[10]           I noted that Rule 6.11(1)(a) requires that only affidavit evidence, “including an affidavit of an expert” can be used when the Court is making a decision about an application.

[11]           In my view, the Rules relating to Summary Trials (Rules 7.5 to 7:11), do not modify this requirement. Rule 7.7(2) says that Part 6, where Rule 6.11(1)(a) is found, apply to applications for Summary Trials “except to the extent that it is modified by this Division”.  There is nothing in the Summary Trials Division which modifies the requirement that the Court rely only on sworn affidavit evidence.

The Court also questioned whether Summary Trial was the appropriate process for an assessment of damages:

[14]           I expressed some doubt that the Summary Trial procedure is appropriate for an assessment of personal injuries.  But I acknowledged that it may be.  I directed Ms. Burns’ attention to Elliott v. Amante 2000 ABQB 374 a decision of McMahon J. under the “Old Rules” where, at paragraph 15, the use of the summary trial procedure for personal injury damage assessments in defended cases was approved.  McMahon J. appears to have contemplated that medical reports could come before the Court “appended” to affidavit material.  But he also observed that, “Opinion evidence (in personal injury cases) will also be necessary to permit an assessment of damages”.  In my view, evidence means sworn evidence.

The Court ultimately adjourned the application to permit counsel to submit improved Affidavit evidence:

[15]           In the end, I advised Ms. Burns that I would consider whether to order a trial of an issue as contemplated by Rule 7.11(a) or simply adjourn the application sine die to permit an improvement of the materials.

[16]           I have decided upon the later course.  It remains open, however, for the judge who hears the summary trial application to determine that the summary trial procedure is inappropriate and to order an assessment trial on viva voce evidence