This decision concerned procedural issues regarding the examination of a Defendant, Karim Jivraj (“Jivraj”), who was Noted in Default but summoned to attend Trial pursuant to an Interprovincial Subpoena issued under Section 5 of the Interprovincial Subpoenas Act, RSA 2000, c I-9 (the “Interprovincial Subpoena”), in a defamation Action.

The Plaintiff previously sought leave under Rule 8.17 to read into evidence portions of Jivraj’s evidence from a separate Action in which the Plaintiff obtained a permanent Restraining Order against Jivraj. Justice Harris dismissed the Leave Application but granted the Plaintiff’s alternative request for the Interprovincial Subpoena.

The Plaintiff argued that Jivraj remained a party adverse in interest and should therefore be subject to cross-examination. Alternatively, the Plaintiff sought to have Jivraj declared a hostile witness. The remaining Defendants argued that Jivraj, having been summoned pursuant to the Interprovincial Subpoena, was the Plaintiff’s witness and must be examined in accordance with the ordinary common law rules governing a party’s own witness.

Justice Harris held that, despite the Statement of Defence being struck and Jivraj being Noted in Default, Jivraj remained a party to the Action. In reaching that conclusion, Harris J. considered the Court’s authority under Rule 3.37 to permit participation by a party whose pleading has been struck. However, the Court emphasized that Jivraj’s status as a party did not determine how examination at Trial would proceed.

Harris J. considered Rules 8.17 and 8.8 and noted that, although Rule 8.8 did not apply directly because Jivraj resided outside Alberta, neither the Rule nor the Interprovincial Subpoenas Act distinguished between parties and non-parties for the purpose of compelling attendance as a witness. Justice Harris held that, because the Interprovincial Subpoena was obtained on the basis that Jivraj’s evidence was necessary to prove the Plaintiff’s case, Jivraj was properly treated as the Plaintiff’s witness.

The Court further held that, in the absence of any Alberta Rule permitting otherwise, the common law rule applies, and a party may not cross-examine its own witness unless the witness is declared hostile. Justice Harris declined to rule on hostility in advance, stating that such a determination must be based on the witness’s conduct while giving evidence at Trial.

Regarding the remaining Defendants, the Court adopted the approach in Trizec Equities Ltd. v Ellis-Don Management Services Ltd., 1996 CanLII 10350 (AB KB), holding that they may examine Jivraj in chief to elicit supplementary evidence. However, any right to cross-examine would depend on whether a genuine adversity of interest or conflict in the evidence arose. Harris J. held that the scope of any cross-examination should be determined after Jivraj testified to avoid non-adversarial or “sweetheart” cross-examination.