Wittmann CJ

5.17: People who may be questioned
5.18: Persons providing services to corporation
5.29: Acknowledgment of corporate witness’s evidence
5.31: Use of transcript and answers to written questions

Case Summary

CNRL commenced an Action against the Defendants alleging that they negligently provided a pipe-coating and insulation system related to an underground pipeline owned by CNRL. Certain individuals from the Third Party, Dunn Hiebert, who had provided services to CNRL, were questioned, and the Defendants IMV and Flint made identical Applications pursuant to Rule 5.18(4) for an Order that the evidence of those individuals be treated as if it were evidence of the employees of CNRL. CNRL refused to acknowledge the evidence of the Dunn Hebert witnesses as some of the evidence of its corporate representative, arguing that allowing such evidence would unfairly prejudice them at Trial. Wittmann C.J. considered Rules 5.17, 5.18, 5.29, and 5.31 and noted that there was overwhelming evidence that construction management and inspection services evidence could not be obtained from an officer or employee, or former officer or former employee, of CNRL within the meaning of Rule 5.18(1)(a). Further, CNRL was adverse in interest to IMV and Flint. The witnesses had been produced by Dunn Hiebert because it was a party to the Action and Questioning had been conducted by the parties that declared themselves adverse in interest.

The Court saw no unfairness to CNRL by allowing the evidence from the Dunn Hebert witnesses to be treated as some of CNRL's evidence under Rule 5.18. With respect to Rule 5.18(c), there was no undue hardship, expense or delay to CNRL or any other person. Wittmann C.J. observed that if a read-in answer was attempted in any case before a Trial Judge the party may object on the basis that the answer is incomplete pursuant to Rule 5.31(3). Moreover, by making the declaration that the evidence of the Dunn Hiebert witnesses was to be treated as if it were the evidence of employees of CNRL, the Court was not ruling on any aspect of Rule 5.29.

The Court granted the Applications of IMV and Flint, and the evidence of the Dunn Hiebert witnesses was to be treated as if it were evidence of CNRL pursuant to Rule 5.18(4). In light of this declaration, Wittmann C.J. concluded that an inquiry should be made again of CNRL to ascertain whether the corporate representative of CNRL still refused to make the acknowledgement contemplated in Rule 5.29(2) with respect to the evidence of the Dunn Hiebert witnesses. If the parties still disputed the issue, a further application to the Court could then be made.

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