Slatter, Bielby and Wakeling JJA

3.11: Service and filing of affidavits and other evidence in reply and response
3.14: Originating application evidence (other than judicial review)
3.8: Originating applications and associated evidence
4.27: Status of formal offer to settle and acceptance
4.28: Confidentiality of formal offer to settle
8.14: Unavailable or unwilling witness
12.3: Application of other Parts

Case Summary

The Appellant, Doran Flock (“Mr. Flock”), and the late Arlene Flock (“Mrs. Flock”) were married in 1982. They purchased a residence as joint tenants in 1993 (the “Property”), separated in 1994, and were divorced in 1999. Mr. Flock commenced a matrimonial property Action in 1996 (the “Matrimonial Property Action”) and that Action had not been resolved when Mrs. Flock died in 2014.

After a complex series of Applications, Actions, an Originating Application, and an arbitration (the “Arbitration”), the Matrimonial Property Action was dismissed for delay under Rule 4.33. The issue before the Alberta Court of Appeal (the “ABCA” or the “Court”) concerned the admissibility of evidence that might be used to resolve the remaining dispute which consisted mostly of an Originating Application brought by Mrs. Flock’s estate (the “Estate”) for retroactive severance of the joint tenancy of the Property (the “Application”).

The issues on Appeal included, inter alia: (1) whether any of the evidence permitted by the Chambers Judge was inadmissible because it was privileged or hearsay; and (2) whether any of the findings from the Arbitration/Matrimonial Property Action were admissible as evidence.

In turning to the issue of privileged documents, the Court referenced Rules 4.27 and 4.28 and emphasized that Rule 4.28 expressly provides that Formal Offers are not to be disclosed to the Court until after the dispute is resolved. Accordingly, the Court allowed the Appeal on this point and ordered that anything in the Affidavits or exhibits relating to without prejudice correspondence or offers of settlement was to be struck from the record.

In dealing with the issues of admissibility, the ABCA referenced Rules 3.8 and 3.14 which govern Actions commenced by Originating Application and outline the threshold requirement for evidence in such cases. The Court noted that Rule 3.11, which deals with replies to Originating Applications, parallels Rule 3.8(1)(d) and also requires that the Respondent give notice of the evidence it proposes to use “a reasonable time before the originating application is to be heard”.

Further, the Court highlighted that by virtue of Rule 12.3 the foregoing Rules apply to the Application issued by the Estate for retroactive severance of the joint tenancy. The Court found that Rule 3.14(1)(f) allows the use of evidence filed in other proceedings with the leave of the Court and that some of the evidence assembled from the Matrimonial Property Action or the Arbitration may therefore be relevant.

Referencing Rule 8.14(1)(a), pertaining to unavailable witnesses, the Court noted that, given unavailability of the deceased Mrs. Flock, this Rule may also be applicable. Accordingly, the Court concluded that the most economic and efficient procedure would be to permit the use of any such evidence in the Application rather than attempting to replicate it and cautioned that, if either party intended on doing so, the necessary consent or approval of the Trial Court should be obtained.

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