Topolniski J

5.31: Use of transcript and answers to written questions
8.14: Unavailable or unwilling witness

Case Summary

In a tragic series of events, Douglas Peppler (“Mr. Peppler"), died at the age of forty-one, five years after becoming quadriplegic due to severe cervical myelopathy. The Action was about whether a family physician (“Dr. Lee”), who saw Mr. Peppler twice, some four months before his quadriplegia, was negligent and caused his injuries, and was thereby legally responsible for those injuries. The Plaintiff was Raymond Peppler, Mr. Peppler’s father and the executor of his son’s estate (the “Estate”).

Two evidentiary issues arose pertaining to the Rules including: (1) the use of evidence from unavailable witnesses under Rule 8.14; and (2) the use of transcripts from one’s own Questioning pursuant to Rule 5.31.

The Estate sought to introduce a partly redacted transcript of Mr. Peppler’s Questioning. Topolniski J. analyzed Rule 8.14 pertaining to unavailable witnesses and concluded that the proposed evidence satisfied the requirements of Rule 8.14. Justice Topolniski noted that Mr. Peppler’s evidence was given under oath, he was skillfully questioned by Dr. Lee’s counsel, and while Mr. Peppler’s credibility could not be further probed by cross-examination, that did not weigh against admitting the evidence. Citing Renke J. in DD v Wong, 2018 ABQB 486 (CanLII), Her Ladyship observed that a want of cross-examination on credibility may be compensated for by judicial self-instruction and in weighing the evidence.

Dr. Lee also sought to read-in several passages of his Questioning transcript pursuant to Rule 5.31(1) for context. The Estate objected arguing that these proposed read-ins were distinct answers and unnecessary to provide context. Reviewing the relevant authorities Topolniski J. found that Rule 5.31 cannot be used to put before the Court all that the witness has said on a particular topic; but rather, is limited to adding the rest of a specific answer or clarifying a passage which has been taken out of context or may be misleading. Accordingly, Her Ladyship admitted most of read-ins but disallowed the admission of two proposed read-ins for the above reasoning.

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