FEG v MJV, 2023 ABKB 726


5.31: Use of transcript and answers to written questions
6.7: Questioning on affidavit in support, response and reply to application

Case Summary

In relation to a Special Application, the Court considered, among other issues, an updated Affidavit which was filed by the Plaintiff which relied on and referred to the transcript of a Questioning on Affidavit conducted by the Defendant. The Defendant objected to use of this Affidavit (the “Objected to Affidavit”). The Objected to Affidavit was objected to on the basis that the submission was contrary to Rule 5.31, which restricts the use or reliance of a Part 5 Questioning transcript to the questioning party, not the questioned party. The Court determined that there had been confusion because of the use of the word “questioning” within Rule 5.31, which applies to Questioning for discovery, and Rule 6.7, which applies to Questioning on Affidavit.

The Court accordingly found that there was nothing improper about the Plaintiff relying on or referring to their own Questioning on Affidavit in the Objected to Affidavit and the filing of the entirety of the Questioning on Affidavit transcript for the purposes of the Application, noting that it should have been done so by the questioning party. 

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