APPLEBY v SMALLWOOD, 2018 ABQB 894
8.14: Unavailable or unwilling witness
The Plaintiffs sought a declaration that certain public lands had been dedicated for public use as a highway. One of the Plaintiffs, James Santrock, passed away before the Trial. Mr. Santrock’s estate did not continue his participation in the litigation, so at the time of Trial neither Mr. Santrock nor his estate were parties.
The other Plaintiffs sought to have certain evidence from Mr. Santrock’s Part 5 Questioning admitted at Trial pursuant to Rule 8.14. The Defendants argued that Rule 8.14 does not apply when the evidence was created while the witness was a party but is no longer a party at Trial. Justice Burns reviewed Rule 8.14 and confirmed that the Rule applies when a person who has been questioned under Part 5 is dead, but does not require the person who is dead to be a current party to the litigation. Burns J. admitted the portions of the evidence submitted by the Plaintiffs that contained facts which the Court ruled could not be proven in any other manner, but refused to admit the portions which could be proven another way or which were not related to important aspects of the Plaintiffs’ case. The Decision did not provide details or excerpts of the evidence at issue.