KY v BAHLER, 2023 ABKB 280


8.15: Notice of persons not intended to be called as witnesses
8.8: Notice to attend as witness at trial

Case Summary

This was a Judgment in a medical negligence Action. The Defendant physicians were alleged to have breached the standard of care applicable to them in connection with medical treatment rendered to a pregnant mother and her then-unborn twins. The mother and twins were the Plaintiffs.

In argument, the Defendants urged that an adverse inference be drawn against the Plaintiffs for failing to call witnesses. The Court noted that, pursuant to Rule 8.15(4), an adverse interest may be avoided if a party serves notice on every other party indicating the names of individuals not intended to be called as witnesses and the other party does not respond. The Court added that, even absent compliance with Rule 8.15, the drawing of an adverse interest is subject to the Court’s discretion, having regard to whether: (1) there is a legitimate explanation for the failure to call the witness; (2) the witness has material evidence to provide; (3) the witness is the only person or the best person who can provide the evidence; and (4) the witness is within the exclusive control of the party against whom the inference is sought, and is not equally available to both parties.

The Defendants sought that an adverse inference be drawn against the Plaintiffs as a result of their failure to call the Plaintiff mother’s mother, who had been present for an important medical examination. The Court noted that notice had not been served pursuant to Rule 8.15 but concluded that an adverse inference should not be drawn since evidence of the examination was otherwise available through the Plaintiff mother. The Court noted that the Defendants could have served notice on the witness pursuant to Rule 8.8(1), which was not done.

The Court also rejected the Defendants’ contention that an adverse inference should be drawn in light of the Plaintiffs’ failure to call a medical expert who had been consulted in connection with the Plaintiffs’ treatment. Again, no notice was served pursuant to Rule 8.15. However, the Court held that the documentary record, which closely documented the expert’s fleeting involvement in the events in issue, was sufficient to cover any evidence that the expert might have provided. As a result, the Court held that it was not appropriate to draw an adverse inference.

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