EMPSON v WENZEL DOWNHOLE TOOLS LTD, 2013 ABCA 418
BERGER, SLATTER and VELDHUIS JJA
4.31: Application to deal with delay
8.14: Unavailable or unwilling witness
The Defendant brought an Application in Chambers to dismiss the Action for inordinate and unexplained delay. Despite the fact that a key witness had died during the period of delay, the Chambers Judge dismissed the Defendant’s Application. The Defendant appealed.
The Court of Appeal stated that Rule 4.31(2) presumes prejudice when there has been inordinate and inexcusably delay. Specifically, prejudice is presumed if there has been a death of a key witness, but this presumption is rebuttable and each case must be examined on its facts.
The Court of Appeal dismissed the Appeal, noting that that Chambers Judge’s findings were entitled to deference and there was no reviewable error. It was further noted that the deceased witness was questioned, he answered Undertakings, and then he was questioned again. Rule 8.14 allows a Party to make use of transcripts from the Questioning of its own witness when the witness has died. Therefore, any prejudice from the death of the witness would be reduced.View CanLII Details