paperny, martin AND mcdonald jja

5.17: People who may be questioned
5.29: Acknowledgment of corporate witness’s evidence
5.31: Use of transcript and answers to written questions
5.4: Appointment of corporate representatives
14.75: Disposing of appeals

Case Summary

The Plaintiff, CDM Direct Mail (CDM), sued the Centre for Immigration Policy Reform (CIPR) for an unpaid invoice totalling $111,242. At Trial, CIPR’s counsel objected to the read-in of the transcript of one of CIPR’s officers, Ms. Kopala. The question on Appeal was whether the Chambers Judge correctly interpreted the Rules related to using the transcripts of corporate representatives.

The Court of Appeal noted that Rules 5.4 and 5.17(1)(b) allow pre-Trial Questioning of adverse parties; where that party is a corporation, they may question an officer who has relevant and material information and the corporate representative chosen by the corporation. CIPR chose Mr. Jurshevshi as its corporate representative. CPM questioned both Mr. Jurshevshi and Ms. Kopala. The Court stated that, while Rule 5.31 permits the Plaintiff to use the transcript of an adverse party, Rule 5.29 restricts a corporate witness’ transcript from being read-in unless the corporate representative acknowledges it. Although corporate employees may be examined, that evidence cannot be read in at Trial unless those statements are admitted or adopted by the corporate representative. As the corporate representative was never asked to adopt the transcript of Ms. Kopala, the transcript could not be read in.

Although the Chambers Judge made a clear error in allowing the read-in of Ms. Kopala’s Questioning transcript, Rule 14.75(2) allows a Court to dismiss an Appeal where no substantial wrong or miscarriage of justice has resulted or where the Decision would have been the same despite the error. The Court held that the result would have been the same even without the inadmissible evidence and dismissed the Appeal.

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