KUDZIN v APM CONSTRUCTION SERVICES INC, 2023 ABKB 425
1.5: Rule contravention, non-compliance and irregularities
3.65: Permission of Court to amendment before or after close of pleadings
5.31: Use of transcript and answers to written questions
6.11: Evidence at application hearings
6.8: Questioning witness before hearing
7.3: Summary Judgment (Application and decision)
13.12: Pleadings: denial of facts
13.18: Types of affidavit
Pursuant to Rule 7.3(1)(b), the Applicants sought to summarily dismiss eleven of thirteen Actions arising from an explosion. The Court noted the applicable principles for Summary Judgment as set out in the jurisprudence but ultimately determined that it was not possible to fairly resolve the claims against the Applicants on a summary basis, based on the issues it had identified in the facts, the record, and the law.
The Court considered whether some of the Respondents (the “Neighbor Respondents”) could rely on various elements of their compendium of evidence which included: excerpts from the Part 5 Questioning transcripts of one of the Applicants (the “Applicants’ Questioning”); excerpts from the Part 5 Questioning transcripts of several individual witnesses as parties, and employees or ex-employees of various corporate Defendants (the “Other Defendants’ Questioning”); and certain records produced by parties in the Actions but not exhibited to any Affidavit filed in the Actions (the “Selected Records”).
The Court also considered whether the Applicants could rely on various elements of their compendium of evidence which included: excerpts from the Part 5 Questioning of another Defendant (the “Middlemiss Defendant Questioning”); numerous records produced by another Defendant who had filed a Third Party Claim against the Applicants (the “APM Defendant Records”). The Court also considered whether the Applicants could rely on excerpts from the Part 5 Questioning of two other Defendants (the “J. Arbeau and Arends Defendant Questioning”).
The Court reviewed Rule 5.31 and Rule 6.11 when considering whether the Neighbour Respondents could rely on the Applicants’ Questioning, noting that Rule 6.11 provides that that written answers in Part 5 Questioning which may be used in in accordance with Rule 5.31 is evidence that a Court may consider when making a decision about an Application. The Court determined that the Applicants’ Questioning was properly useable by the Neighbour Respondents because (1) one of the Applicants was both a party and corporate representative to other Applicant, (2) the Applicants were adverse in interest, and (3) the Neighbour Respondents sought to use that evidence against the Applicants.
Among other things, the Court considered whether the Neighbour Respondents could rely on Rule 6.11(c) to use the Other Defendants’ Questioning in conjunction with Rule 5.31. The Court reviewed the jurisprudence and noted that Rule 6.11 restricts the evidence a Court may consider on an Application, noting that the Court “may consider only” the listed forms of evidence; does not distinguish between different types of Applications; and expressly provides that Part 5 Questioning can be used if it is evidence that “may be used” under Rule 5.31.
The Court found that absent an agreement, a party cannot admit Part 5 Questioning evidence for a party adverse in interest (party B) against another party in the action (party C), whether in Trial or in an Application (including summary process) regardless of whether party C is adverse or not. The Court set out that there may be exceptions, such as if a witness is no longer available, but no exceptions had been suggested. The Court noted that Rule 6.8 allows for the Questioning of a person for the purpose of obtaining a transcript of that person’s evidence for use at the hearing of an Application, and the transcript of that Questioning is filed and available to be used on the Application under Rule 6.11(1)(b). The Court further noted that Rule 6.8 may be used to question parties or individuals, including employees or former employees of parties. The Court set out that its interpretation of Rules 6.11(1)(c) and 5.31 was consistent with the obligations of parties to put their best foot forward.
The Court acknowledged that it may make sense for Rule 6.11(1)(c) to be reconsidered in the future or for parties to agree to a more flexible use of transcripts, but that unlike in Ontario, it could not characterize the attempt to use the Other Defendants’ Questioning as a procedural non-compliance that was correctible under Rule 1.5. The Court set out that Rule 1.5 should not be used to amend the Rules or override mandatory or limiting provisions under Rule 6.11. Accordingly, the Court found that the Neighbour Respondents were not entitled to rely on the Other Defendants’ Questioning pursuant to Rule 6.11(c) in the way that they had attempted. The Court later noted that for the same reasons, the Applicants could not rely on the J. Arbeau and Arends Defendant Questioning and the Middlemiss Defendant Questioning.
The Court found that the Other Defendants’ Questioning was not admissible as a principled exception to hearsay and noted that the Respondents had not adduced an Affidavit, and had instead attempted to rely on facts in the Other Defendants’ Questioning as hearsay pursuant to Rule 13.18. The Court further found that the Other Defendants’ Questioning did not fit into the types of evidence the Court may review on an Application under Rule 6.11(1).
In determining whether the Selected Records could be used, the Court reviewed Rule 6.11(d) and Rule 5.15. The Court accordingly set out that Rule 5.15 created certain presumed admissions about records so that parties do not need to unnecessarily waste time proving the authenticity of records, or prove that they were sent and received as indicated. The Court found that Rule 6.11(1)(d) then provides a method by which the Court may admit, in an Application, the records that are subject to those admissions. Further, the Court specified that an “admissible record” set out in Rule 6.11(1)(d) must still be admitted into evidence. The Court set out that if the exceptions do not apply, the presumptions are not rebutted, and the records are otherwise admissible; the records, subject to Rule 5.15(2), are admissible records that may be relied on by parties and considered by the Court on an Application pursuant to Rule 6.11(1)(d). The Court specified that records admitted pursuant to Rule 6.11(1)(d) at best: can only be admitted as authentic records that are true copies of the original; are what they purport to be; which were transmitted and received as they purport or appear to have been but could not be admitted for the truth of their contents. The Court found that the Selected Records and the APM Defendant Records were accordingly admissible only for the purposes of proving that they were authentic records sent and received on or about the time they appeared to have been transmitted and were not admissible for proof of the truth of their contents.
The Court considered whether the Applicants had proven there was no merit to claims of vicarious liability on their Application made pursuant to Rule 7.3, and found that because the Applicants had put into issue their own alleged lack of vicarious liability Pursuant to Rule 13.12, the Pleadings were deemed to be denied by all Respondents and therefore vicarious liability was squarely in issue. The Court therefore dismissed the Applicants’ claim for Summary Dismissal.
The Court also noted that some claims were likely filed before there was complete discovery and that that Rule 3.65(1), subject to Rule 3.65(5), enabled the Court to give permission to amend a Pleading before or after the close of Pleadings.View CanLII Details