The Appellants appealed the Order of the Case Management Justice which had dismissed their Application to examine a proposed witness outside of Alberta (the “Proposed Witness”) for the purpose of a pending Application to certify a Class Action against the Respondents. The Court noted that Rule 6.22 governed the Application. The Proposed Witness refused the Appellants’ request to provide an Affidavit and advised that he would only provide information if compelled to do so by a Court Order.

The Appellants purported to provide evidence of the supporting requirements for certifying a Class Action via Affidavits proffered of the Appellant’s counsel, where one Affidavit specified that the Proposed Witness had relevant information to give on key issues with respect to the Certification Application.

The Court noted that there was little case law with respect to Rule 6.22 or its predecessor Rule 270. The Court determined that the applicable test places a heavy onus on the Applicant seeking the Order where the evidence sought must be material and not merely corroborative; the particulars of the evidence to be given must both be provided and it must be shown what the evidence will be. However, the test does not require the Applicant to show that all other avenues have been exhausted and hearsay evidence may be used in support of the Application. The Court additionally noted that even if the Applicant meets the test, the Court may decline to grant the Order where the particular circumstances inform the exercise of the Court’s discretion.

The Court concluded that although the Case Management Justice’s reasons were “brief and somewhat conclusory”, the Case Management Justice was aware of the correct test governing an Order under Rule 6.22. The Court determined that the Case Management Justice’s conclusion that the Appellant’s evidence was insufficient to discharge the “heavy onus” was a reasonable conclusion supported by the Court’s review of the record and sufficient to dispose of the Appeal, as such it was unnecessary to consider whether the proffered Affidavit evidence was appropriately given no weight.

The also noted that the practise of proffering evidence through a lawyer’s Affidavit is discouraged and evidence should be provided by the parties themselves.

The Court rejected the proposition that logical inferences are sufficient to meet the standards of a Rule 6.22 Application, explicitly noting that deposing that evidence will “likely be relevant and material” or “is necessary in the interests of justice” amounts to “inadequate bald assertions”. The Court additionally found that the Appellants had failed to articulate how any evidence the Proposed Witness possessed related to one or more of the statutory requirements for certification. The Court noted that the certification record had already been filed by the Appellants at the time of the Application, and while not complete, the Case Management Justice was in “a far superior position” to that of the Appellate Panel in assessing whether the proposed evidence was material not merely corroborative. 

The Court dismissed the Appeal.