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Monday Morning Case Bites for October 19, 2020

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

Edited by Amanda Kostek & Steven Graham

Cicalese v SSMPG Integrating Services Inc., 2020 ABQB 605
Summary Judgement| Hearsay Evidence | Evidence of Employees

The Plaintiff and the Defendant entered into a joint venture. The Plaintiffs sought summary judgment for repayment of loans. The Defendants resisted the application on the basis of there being conflicting evidence, and argued that it was improper for summary judgment.

One of the issues before the Court was the extent to which hearsay evidence could be provided by a respondent to a summary judgment application. The Court noted the following: 

[141]      The issue of hearsay being provided by a respondent to a summary judgment application is the subject of some debate within the Court of Queen’s Bench.  

[142]      Rule 13.18 clearly allows hearsay from the respondent to an application where the respondent is not seeking final relief if certain conditions are met.  The applicant for final relief, such as a summary judgment, must provide evidence of personal knowledge, and/or rely on “other evidence to the effect that [there is no defence to a claim or part of it]”: rule 7.3. 

[143]      But there are also many cases that say on a summary judgment application both parties must “put their best foot forward”.  That is stated in Weir-Jones v Purolator, and repeated in Hannam v Medicine Hat School District No 76, 2020 ABCA 343 (a decision released very shortly after oral argument in this matter was complete).   

[144]      Does that require a respondent to put before the court an affidavit of a witness who has personal knowledge, regardless of rule 13.18? 

The Master hearing the application noted that there were some conflicting views set out by Justices of the Court of Queen’s Bench.  

[150]      In County of Vulcan v Genesis Reciprocal Insurance Exchange, 2020 ABQB 93, Graesser, J. said that both parties are required to provide evidence of personal knowledge: 

Now, in the event the Applicant has made out its case, the Respondent must put its best foot forward if it hopes to defeat summary dismissal.  Both parties are responsible for putting a proper evidentiary foundation before the Court and any failure to do so is at the party’s peril. 

Presumptively inadmissible hearsay may be admissible under [R v] Khelawon [2006 SCC 57 (CanLII), [2006] 2 SCR 787], and it may be admissible for narrative purposes.  However, my read of Weir-Jones is that neither party may rely on hearsay evidence on the substantive issues to be determined on a summary judgment application, unless the hearsay can be brought within the exceptions described in Khelawon or other recognized exceptions to the hearsay rule.  In this case, there is no basis for admissibility under Khelawon. That speaks of necessity and unavailability, not convenience and experience. 

…  

[154]      Of further importance is that the Court in County of Vulcan did not refer to Renke, J.’s decision given almost five months earlier in Clark Builders and Stantec Consulting Ltd v GO Community Centre, 2019 ABQB 706, where the Court came to the contrary conclusion.  That application was also an appeal from a summary dismissal, and the issue of the respondent’s reliance on hearsay evidence arose.  

[155]      At paragraph 40, the Court in Clark Builders stated that the respondent to a summary judgment application may rely on hearsay evidence, relying on Court v DeBaie, 2012 ABQB 640 at para. 33 and 34, Murphy v Cahill, 2012 ABQB 793 at para. 26, and DD v Calgary Counselling Centre, 2017 ABQB 95 at para. 43. 

The Master sided with Renke J.’s reasoning, and allowed hearsay evidence to the extent that rule 13.18 was satisfied. 

Another issue before the Court was that some of the evidence the Plaintiff relied upon was given by one of the directors of the Defendant during questioning. That evidence had not yet been put to the corporate representative of the Defendant for him to acknowledge as the Defendant’s evidence, per rule 5.29. The Defendants argued that such evidence had been given under oath and could be ‘read in’ at a chambers application.  

[180]      The only other “evidence” of Mr. Kinder’s supposed duress is evidence that the Defendant wants to read in from the plaintiff’s examination of Mr. Kinder as an employee, and president of the Defendant.  

[181]      The plaintiffs attached to their brief some excerpts from his examination of Mr. Kinder under Part 5 of the Alberta Rules of Court.  They argue that rule 5.31 allows the use of that transcript in support of an application “as against a party adverse in interest any of the evidence of that other party in a transcript of questioning under rule 5.17 or 5.18”. 

[182]      Rule 5.17 (1)(d) allows the questioning of “one or more persons who are or were employees of the party adverse in interest who have or appear to have relevant and material information that was acquired because of the employment”.  Plaintiffs’ counsel examined Mr. Kinder under this rule and sub-paragraph (b)(i), which allows examination of an officer. 

[183]      The transcript was not put to Mr. Mooney as the Defendant’s corporate officer for him to acknowledge that it was some information of the Defendant, under rule 5.29.  

[184]      Rule 5.29 says that 

The evidence given by a corporate witness during questioning may not be read in as evidence at trial unless a corporate representative of the corporation, under oath, acknowledges that the evidence forms some of the information of the corporation. 

(My emphasis.) 

[185]      The express limitation of rule 5.29 to use of the evidence “at trial” is said by the plaintiffs to make it clear that the limitation does not apply to its use in applications, even one for summary judgment.  But the rule does not say that; at best, that is an implication. 

[186]      The plaintiffs argue that counsel did not need to put Mr. Kinder’s testimony to Mr. Mooney, because rule 5.31 allows the evidence to be used “in support of an application”. 

[187]      However, rule 5.31(2) places an important limitation on the use of transcript evidence obtained under rule 5.17: it is “evidence only against the party who was questioned.” 

The Master confirmed that evidence given by someone other than a party’s proper corporate representative does not constitute knowledge or evidence of the party until it has been acknowledged under rule 5.29:  

[188]      The question, therefore, is whether the evidence of a non-party (Mr. Kinder) can be used as against a party (the Defendant).  Rule 5.31 is not crystal clear on this point.  But it says that the “evidence of that other party” may be used in an application, and the context makes it clear that it is the evidence of the “other party” to the lawsuit (i.e., the Defendant).  This is what it says: 

(1)   Subject to rule 5.29, a party may use in support of an application or proceeding or at trial as against a party adverse in interest any of the evidence of that other party in a transcript of questioning under rule 5.17 or 5.18 and any of the evidence in the answers of that other party to written questions under rule 5.28. 

(2)   Evidence referred to in subrule (1) is evidence only of the questioning party who uses the transcript evidence … and is evidence only against the party who was questioned. 

[189]      In my view, the long-standing approach is the correct one:  Until the evidence has been put to the corporate witness for him or her to “acknowledge the evidence as information of the corporation” it is not the evidence of the “other party”.  That is, it is Mr. Kinder’s evidence, not the Defendant’s.  It becomes evidence of the “other party” only when the “other party” has been asked to acknowledge it under rule 5.29. 

The Master also concluded that the Defendant could not rely on other parts of that employee’s transcript to resist the Plaintiff’s summary judgment application, and that the Defendant had failed to put its best foot forward in the application:  

[193]      Even if I am wrong on this point, there is no basis for the Defendant trying to “read in” its own president’s testimony.  The argument to the contrary that the Defendant makes is that once an excerpt is used, the corporation may require to Court to read the rest. 

[194]      But rule 5.31(3) allows the Court to direct that other portions to be used only if all or any other portion is so connected with the portion used that it would or might be misleading not to use all or any other portion of the transcript or other answers. 

[195]      The test [for what may be read in] seems fairly narrow”: Stevenson & Cote, Alberta Civil Procedure Handbook (2020), page 5-96.  A witness cannot even insist that all that he has said on a subject be read in. 

[196]      The Defendant wants to be allowed to refer to Mr. Kinder’s evidence about being coerced.  That evidence is discrete from the evidence that the plaintiffs want to use.  The plaintiffs did not try to “read in” any part of his evidence on coercion. 

[197]      Accordingly, the Defendant cannot rely on the transcript of Mr. Kinder’s evidence to respond to the application. 

[198]      If the Defendant wanted Mr. Kinder to give evidence in this application that he signed under duress, or even if it wanted to have Mr. Mooney give evidence that Mr. Kinder told him that he signed under duress (with supporting particulars, of course) and that he believes that is true, there was no bar.  The Defendant clearly did not put its “best foot forward” on the point of coercion, if that is the defence that it puts forward and there is evidence to support it. 

The Court finally discussed burdens of proof in a summary judgment application, particularly where the burden at trial would be on the Defendant: 

[209]      The point was discussed at length by Marriott, J. in Rudichuk v Genesis Land Development Corp, 2019 ABQB 133 at paragraphs 35 to 40.  If the burden of proof lies on the defendant for a particular point, then the plaintiff is not bound to prove a negative in order to obtain summary judgment.  (That case involved wrongful dismissal claims where the defendant had pled “just cause” but had tendered no evidence in response to the original summary judgment application before the master.) 

[210]      If the affidavit in support of the application otherwise satisfies rule 7.3, and the plaintiff has proven, on a balance of probabilities, the factual basis of its case (these are the words chosen by the Court of Appeal in Weir-Jones), then there is no need for the plaintiff to prove, on a summary judgment application, more than it would have to prove at trial. 

The Court ultimately granted summary judgment in favour of the Plaintiffs.