5.15: Admissions of authenticity of records
5.29: Acknowledgment of corporate witness’s evidence
5.31: Use of transcript and answers to written questions
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

Genesis Reciprocal Insurance Exchange (“Genesis”) and the County of Vulcan (“Vulcan”) appealed the Decision of Master Birkett under Rule 7.3 dismissing Genesis’ Application for Summary Dismissal of the Action and Vulcan’s Application for Summary Judgment of its claims against Genesis (the “Appeals”). The Appeals related to whether insurance coverage existed under an insurance policy for Vulcan (the “Policy”) in relation to errors allegedly committed by its former chief financial officer. Master Birkett had dismissed both Applications holding that more evidence was needed to properly decide the issues.

As a preliminary matter, Vulcan argued that the record was insufficient for Genesis’ Summary Dismissal Application because Genesis was relying on hearsay evidence in its Application with reference to its corporate representative under Rules 5.29 and 5.31 (the “Corporate Representative”) and the Corporate Representative’s understanding of various records in evidence. Vulcan cited, among other things, Rule 13.18(3) which says that only direct evidence can be used in Applications seeking final relief. Justice Graesser addressed this argument by reviewing the seminal decision of Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 and by explaining that the ability of a corporate representative to be able to review documents in the possession of the corporate body and summarize them or to be able to introduce such documents into evidence is a practical necessity.

Justice Graesser also reviewed the admissibility of a legal opinion and various emails and letters written by and among councillors of Vulcan, its employees, and its former Reeve, which Vulcan argued were also hearsay. Justice Graesser expressly noted that the hearsay argument was contrary to the “documents in possession” doctrine and Rule 5.15, and concluded that this evidence formed some of the evidence of Vulcan. Graesser J. emphasized that it is not necessary to have direct evidence of the senders or recipients of business records to make them admissible.

Justice Graesser reviewed the principles of Summary Judgment under Rule 7.3 and found that the case was suitable for summary procedures. Graesser J. noted that the case turned largely on the interpretation of the Policy and that the facts were not significantly in dispute. His Lordship added that the Applications were made after document production and Questioning by each party.

After an extensive review of the facts before the Court, Justice Graesser concluded by finding that there were enough facts to fairly and justly conclude, among other things, that Vulcan had not complied with Policy and that any coverage, if it existed at all, was not available to it. Accordingly, Justice Graesser granted Genesis’ Application for Summary Dismissal of Vulcan’s claims and dismissed Vulcan’s Application for Summary Judgment.

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