BALDOCK ESTATE v ABOU RESLAN, 2023 ABKB 149
1.2: Purpose and intention of these rules
5.36: Objection to expert’s report
8.6: Notice of trial date
At Trial, the Court held a voir dire on the qualifications of the Plaintiff’s expert witness. Justice Sidnell ruled that the expert’s opinion evidence was not relevant to certain issues because the expert lacked specialized knowledge in pediatric endocrinology under Canadian practices and standards. After the ruling, the Plaintiff moved to adjourn the Trial. The Defendant opposed and the Court denied the adjournment Application.
Once a Trial has commenced, an Application for adjournment may be granted only with leave of the Trial Judge as set out in Rule 8.6(2).
A Judge may exercise discretion to adjourn a Trial after it commences, but only in appropriate circumstances. The Supreme Court of Canada in Barrette v The Queen, 1976 CanLII 180 (SCC) cautioned that a judicial discretion Decision can be reviewed on Appeal when it deprives someone of their rights. The Parties referred Sidnell J. to the 11 factors set out in Royal Bank of Canada v Place, 2010 ABQB 733 that may be considered by a Court on an adjournment Application.
One important factor is the adjournment Applicant’s explanation for not being ready to proceed. There was some debate as to whether qualifications must be raised in a Notice of Objection under Rule 5.36. Rule 5.36(2) states that no objection can be made to the admissibility of an expert’s report at Trial unless a reasonable Notice of Objection is provided by the objecting Party or the Court permits the objection to be made. The Defendants did not serve a Notice of Objection. Nonetheless, Sidnell J. held that “the law requires the party tendering the expert to show that the expert is qualified, and this obligation exists regardless of whether an objection is made” under Rule 5.36.
Justice Sidnell held that “allowing an adjournment so that a party can present better evidence at trial would not be fair or result in a just resolution”. To allow a Party to adjourn a Trial already underway so that it can correct an evidentiary issue would impede the Court process and prevent it from operating in a timely and cost-effective manner as directed by Rule 1.2.
While the Plaintiffs were put in a difficult position, Trials must proceed regardless of the mid-Trial rulings. The Court held that “[a]llowing a mid-trial adjournment to remedy expert evidence where it is found to be inadmissible would have a catastrophic effect on all trials where expert evidence is relied upon”. Litigants would lose confidence that a Trial could be held in the face of an adverse ruling on admissibility.View CanLII Details