DD v WONG ESTATE, 2018 ABQB 486
5.31: Use of transcript and answers to written questions
6.21: Preserving evidence for future use
8.14: Unavailable or unwilling witness
15.2: New rules apply to existing proceedings
15.6: Resolution of difficulty or doubt
A Defendant in the Action, Dr. Wong, had passed away in 2014. The Defendants brought an Application pursuant to Rule 8.14 to read into evidence part of Dr. Wong’s discovery transcript. The Plaintiffs opposed the Application on a number of grounds: firstly, the that the former Rules should apply to this Action, as the examination for discovery was conducted under the former Rules; secondly, that if the new Rules applied to the Action, the requirements for admissibility of the evidence under Rule 8.14 had not been satisfied; thirdly, that if the requirements under Rule 8.14 were satisfied, the Court should exercise its discretion under Rule 8.14 to not allow the evidence to be admitted; and fourthly, that if the Court did allow the evidence to be admitted, the evidence may only be used respecting certain issues in the Action.
Renke J. first dealt with the application of the new Rules to the Action. Renke J. cited Rule 15.2(1) which provides that except as otherwise provided in an enactment, by the Rules, or by an Order under Rule 15.6, the new Rules apply to every existing proceeding. Renke J. also cited Rule 15.1(a), which states that an “existing proceeding” means a Court proceeding commenced but not concluded under the former Rules. Renke J. therefore held that as a starting point, because the new Rules are presumed to apply to the Action, Rule 8.14 applied to the Action. Renke J. then cited Rule 15.6 which may operate to displace the presumption that the new Rules, such as Rule 8.14 apply, as Rule 15.6 provides that if there is a doubt about the application or operation of the Rules to an existing proceeding, that a party may apply to the Court for direction, and the Court may make an Order with respect to the application or suspension of any of the Rules. Renke J. then considered the operation of Rule 15.6 in light of the test to be met under Rule 8.14, in order to determine if an injustice would arise if the new Rules applied to this Action.
Renke J. then considered the test to be met under Rule 8.14. Rule 8.14(1)(a) provides that if a person is dead, a party may, with the Court’s permission, read into evidence all or part of the evidence given at Questioning conducted under Part 5 as the evidence of the person questioned, to the extent that it would be admissible if the person were giving evidence in Court. Renke J. noted that this section of Rule 8.14 had clearly been satisfied. Renke J. considered further aspects of necessity of the evidence, as the Plaintiffs asserted that given the timeline leading up to Dr. Wong’s death, the Defendants could have applied for an Order under Rule 6.21 to preserve Dr. Wong’s evidence while he was still alive. Rule 6.21 provides that the Court may order that a person be questioned under oath for the purpose of preserving evidence if that person is or may be unable to give evidence before the Court because of accident, ill health, disability or death. Renke J. considered the timeline leading up to Dr. Wong’s death and determined it would not have reasonably supported the taking of evidence pursuant to Rule 6.21.
Renke J. also cited Rule 8.14(3)(c) which provides that the Court may grant permission under Rule 8.14 to read in evidence only if the permission is restricted to the portion or portions of the Questioning that relate to the facts. Renke J. ultimately determined that the evidence of Dr. Wong’s Questioning that the Defendants sought to introduce would be admissible if tendered through testimony.
Renke J. finally considered the general principles set out in Rule 8.14(2), which provide that before deciding whether to give permission to read in the evidence, the Court must consider the following factors: the general principle that evidence should be presented orally in Court; how thoroughly the person was questioned under Part 5; and any other appropriate factor. Renke J. determined that the principle of orality was limited by Dr. Wong’s death, that the Questioning completed was thorough, and that the failure to conduct an examination under Rule 6.21 did not outweigh the need for permitting the read in evidence.
Renke J. held that the operation of Rule 8.14 would not cause injustice to the examining party, and that Rule 8.14 applied to the Action and thus examinations for discovery conducted under the former Rules. Renke J. determined that the operation of Rule 8.14 did not need to be suspended pursuant to Rule 15.6. Renke J. granted the Defendants’ Application under Rule 8.14 to read in the proposed evidence, and that the evidence not subject to the restriction provided by Rule 5.31, which limits the use of transcript from Questioning to the examining party.View CanLII Details