The Defendant applied for an Order preserving the evidence of three witnesses pursuant to Rule 6.21.

Master Prowse cited Schwartz Estate v Kwinter, 2008 ABQB 288 in support of the test for preserving evidence. Master Prowse stated that the issues to be considered under Rule 6.21 are whether the Order preserving evidence is necessary, whether the evidence of the witnesses is material, and the impact on the fairness of the process.

The three witnesses in question did not hold Canadian citizenships, did not normally reside in Canada, and did not travel to Canada regularly. The proceedings were at an early stage and a Trial was not anticipated for several years.

Master Prowse held that the witnesses’ testimony was material. Master Prowse observed that the third witness was still an employee of the Defendant, whereas the other two witnesses were former employees. The “necessity” aspect of the above test was therefore not met with respect to the third witness. Master Prowse ultimately ordered the preservation of the evidence of two out of the three witnesses, recognizing that the Plaintiffs would suffer no disadvantage by cross-examining the two witnesses at that point in time.