5.17: People who may be questioned
5.27: Continuing duty to disclose
5.29: Acknowledgment of corporate witness’s evidence
5.3: Modification or waiver of this Part
5.31: Use of transcript and answers to written questions
5.4: Appointment of corporate representatives

Case Summary

The Defendant sought to set aside undertaking read-ins presented as part of the Plaintiff’s evidence because it had provided an updated response to those undertakings. Before Trial, the Defendant replaced its corporate representative due to retirement. The new corporate representative altered undertaking responses that the former corporate representative had made. The Plaintiff sought to rely on read-ins from the original answers.

Rule 5.31(3) allows an additional portion of a transcript or undertaking to be read-in to provide more context so that the original read-in is not misleading. Neither party in this case could explain how the additional information could be, or would not be, misleading.

Rule 5.29(1) permits evidence given by a corporate witness when the corporate representative acknowledges the evidence as the evidence of the corporation. Under Rule 5.4(3), the former corporate representative’s evidence was the evidence of the Defendant. Rule 5.30(1) provides for undertakings which can be subject to cross-examination and a transcript can be produced.

The corporate representative has an obligation under Rule 5.4(2) to be reasonably prepared to answer questions. The former corporate representative had done so.

However, Rule 5.27 (1) allows corrections. These corrections must be made by affidavit and served on the other parties as soon as practicable after the person realizes that the answer was, or has become, incorrect or misleading. In this case, the Defendant did not comply with Rule 5.27 and issued the corrections only five days before Trial, providing the Plaintiff no opportunity to cross-examine on the corrections.

As a result, the Court disallowed the amended responses to undertakings.

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