8.15: Notice of persons not intended to be called as witnesses

Case Summary

The Plaintiff was a paramedic terminated from the Defendant oil and gas company, CNRL. The primary issue was whether CNRL had just cause for summarily dismissing the Plaintiff on the grounds that he had failed to act according to the standards of his profession and CNRL’s requirements for paramedical employees.

The Plaintiff served the Defendant with a notice under Rule 8.15 with an objection to the Defendant’s decision not to call the Plaintiff’s platoon chief, Ian McLeod, as a witness at Trial. Mr. McLeod was an employee of the Defendant and under the Defendant’s exclusive control, so the Plaintiff’s position was that an adverse inference should be drawn regarding evidence that Mr. McLeod would have given.

The Court cited Howard v Sandau, 2008 ABQB 34 for a list of factors to consider on whether to draw an adverse inference. These factors are: (a) whether there is a legitimate explanation for not calling the witness; (b) whether the witness could provide material evidence; (c) whether the witness is the only or best person who could provide that evidence; and (d) whether the witness is within the exclusive control of the party and not equally available to both parties.

On the facts, Poelman J. concluded that this was not a proper case to draw an adverse inference. Mr. McLeod was clearly not directly involved with the Plaintiff’s alleged breaches of protocol and other witnesses were better suited to testify on these matters. The Court was also not satisfied that Mr. McLeod would have added anything material.

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