DH v WOODSON, 2020 ABQB 367
3.68: Court options to deal with significant deficiencies
5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit
Upon the death of a subscriber to a policy of life insurance, a dispute arose in which a recent change in beneficiary designation, which favoured the Applicant, was impugned by the Respondents. The Applicant sought to uphold the change in beneficiary designation through dismissal of the Respondents’ claims and release of the life insurance proceeds.
Central to the parties’ disagreement was the insured’s mental capacity at the time of the change in beneficiary designation. In support of the insured’s capacity, the Applicant had attached a medical report to her Affidavit. The Respondents sought to strike this evidence pursuant to Rule 3.68 as frivolous, irrelevant, or improper information. The Court agreed that the medical opinion was hearsay, in violation of the Rule 13.18 requirement that evidence advanced in pursuit of final relief be grounded in personal knowledge, and struck the report.
In anticipation of the evidentiary challenge to the medical report, the authoring physician swore an Affidavit, exhibiting the report to cure the hearsay defect, which the Applicant then sought to rely upon. The Respondents challenged this Affidavit on the grounds that it had neither been served as an expert report in accordance with Rules 5.34 and 5.35, and that the Respondents had the opportunity to challenge the physician’s evidence through cross-examination or rebuttal. These concerns were shared by the Court, with Justice Price assigning little weight to the physician’s Affidavit.
With respect to the merits of summary disposition, and in reference to Rule 7.2, the Applicant argued that dismissal should follow from admissions of fact made by the Respondents. Justice Price reviewed the pleadings, Affidavit evidence, and cross-examination transcripts, finding that admissions had not been made to support an Order for Summary Dismissal. Turning finally to Summary Dismissal pursuant to Rule 7.3, the Court reviewed whether the Applicant had met her onus of establishing that there was no merit to each of the Respondents’ claims. In result, Justice Price found a genuine issue requiring Trial with respect to all claims, denying the Application for Summary Dismissal, and accordingly denying the Application for release of life insurance proceeds.View CanLII Details