5.16: Undisclosed records not to be used without permission

Case Summary

The Plaintiff was dismissed without cause from the Defendant, High River Toyota. A Summary Trial was held to determine the amount the Plaintiff was entitled to as damages in lieu of notice of termination of his employment. The Court heard from two witnesses, the Plaintiff and Saleem Budhwani (“Mr. Budhwani”), who appeared as a corporate representative for High River Toyota.

Mr. Budhwani swore an Affidavit on November 6, 2019, barely two weeks prior to the Summary Trial. The Plaintiff objected to the admissibility of the Affidavit and its appending documents as the information had not been disclosed to him before early November 2019. The Plaintiff argued that the Defendant’s late production Affidavit and records engaged Rule 5.16.  Rule 5.16 provides that a party who does not disclose a relevant and material record in an Affidavit of Records may not thereafter use the record in evidence in the Action unless the parties agree otherwise or the Court otherwise orders.

Here the Court ruled that the physical records should be excluded on the basis of noncompliance with Rule 5.16. Nonetheless, the Court permitted Mr. Budhwani to give oral evidence as to what the effect of the records were. Ultimately the Court found that Mr. Budhwani’s oral evidence alone was insufficient to discharge the Defendant’s burden of proof on balance of probabilities as to what the Plaintiff’s actual loss would have been. The Court found that the Defendant did not prove what the value of the Plaintiff’s lost opportunity to earn commissions over the past year actually was. The Court underscored that the Defendant did not comply with the Rules in respect of the financial information it sought to rely upon to reduce the Plaintiff’s damages.

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