hunt mcdonald j

5.31: Use of transcript and answers to written questions
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiffs (the “Appellants”) appealed a Master’s Order granting Summary Dismissal of their Claim against the Defendants (the “Respondents”). The Master had granted Summary Dismissal on the basis that the Appellants’ Claim was filed outside the limitation period. On Appeal, the Appellants sought to include additional portions of the transcript from Questioning and to adduce fresh evidence.

Regarding the request to include additional portions of the transcript, Justice Hunt McDonald noted that Rule 5.31(3) provided an exception to the general rule that a party cannot use its own Questioning Transcript. Hunt McDonald J. adopted and applied the test as set out in 410675 Alberta Ltd v Trail South Developments Inc, 2011 ABQB 151 (CanLII) which provided that Rule 5.31 cannot be used to introduce every statement a witness has made on a particular topic; it 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”.

Justice Hunt McDonald also considered the test under Rule 6.14(3) for permitting additional evidence on an Appeal of a Master’s Judgment or Order. Her Ladyship held that the Respondents’ argument that the fresh evidence was self serving did not make it inadmissible. The alleged facts were still relevant and material to issues raised in the Pleadings.

After allowing the Appellants to include additional portions of the Questioning transcript and reviewing their fresh evidence, Justice Hunt McDonald upheld the Master’s decision that the Claim was out of time. The Appeal was dismissed.

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