5.15: Admissions of authenticity of records
5.17: People who may be questioned
5.18: Persons providing services to corporation
5.28: Written questions
5.31: Use of transcript and answers to written questions

Case Summary

The Plaintiff, Canadian Natural Resources Limited (“CNRL”) commenced an Action against an engineering company, IMV Projects Inc. (“IMV”), and others for damages arising from a pipeline failure. CNRL settled with the other Defendants prior to Trial. Extensive evidence was put forth over the course of the three month Trial in which the Court ultimately held IMV liable for negligence and breach of contract.

Prior to the start of the pipeline project, the parties had entered into a memorandum of agreement (“MOA”). The MOA had been renewed several times, and CNRL had produced a full 19 page copy of the MOA in their Affidavit of Records though there were many versions within IMV’s production. At Trial, IMV brought a preliminary Application to declare that CNRL was bound by the full 19 page MOA on the basis that the MOA was authenticated. IMV argued that, pursuant to Rule 5.15, the MOA in CNRL’s production was admitted to be the contract. Justice Nation observed that, although Rule 5.15 meant that the authenticity of a record produced within a party’s Affidavit of Records is admitted as a true copy of the original document, the Rule was not determinative since each party produced different versions of the same contract in their Affidavits of Records. Nation J. observed that the Court must look at the various forms and all of the evidence to determine the applicable terms of the contract, particularly when there is conflicting evidence about what the actual terms were.

During Trial, IMV called a former employee of CNRL as a witness. In cross-examination, CNRL requested to use some of the witness’ transcript evidence from Questioning to challenge his recollection and credibility. IMV argued that Rule 5.31(2) prevented CNRL from using the Questioning transcripts, as only IMV as the questioning party could use it. Nation J. noted that Rule 5.31 allows a party to use the evidence obtained through Questioning under Rule 5.17 or 5.18, and any evidence to written questions under Rule 5.28, as against a party adverse in interest. Justice Nation highlighted that the restrictions in Rule 5.31 are set so that counsel may question on an Affidavit, or conduct Questioning, with the knowledge that the evidence can only be used by them, against the party being questioned. However, the wording of Rule 5.31 is permissive, not restrictive: it provides for how the transcript may be used as evidence at Trial, but does restrict the use of the transcript to impeach a witness. Here, CNRL was not trying to use the transcript as evidence for their own case; CNRL simply wanted to use the transcript to impeach the witness’ credibility. As such, CNRL was permitted to put the transcript to the employee in cross-examination.

View CanLII Details