BROSSEAU ESTATE v DUBARRY ESTATE, 2020 ABQB 601
6.7: Questioning on affidavit in support, response and reply to application
In an Action containing numerous claims among parties affected by a fatal aircraft crash, two Defendants and their insurer brought cross-Applications seeking summary disposition of a coverage dispute. A Plaintiff swore an Affidavit in respect of these cross-Applications, and was cross-examined on that Affidavit by counsel for the insurer specifically involved in those cross-Applications, and also by counsel for other insurers not specifically involved in those cross-Applications (but nonetheless parties to the Action). A dispute arose as to whether the transcript for this latter cross-examination should be included in the record of evidence for the cross-Applications.
The Court reviewed Rule 6.7 and observed that any “person” (i.e. not restricted to a party) may cross-examine any person making an Affidavit if those two persons are adverse in interest with respect to the subject Application. Master Schlosser found that the separately represented insurers were not adverse in interest with respect to the cross-Applications in question, and therefore, the impugned portion of the transcript of cross-examination was to be excluded from the record.View CanLII Details