TOLIVER v KOEPKE, 2013 ABCA 304
CONRAD, SLATTER and O'FERRALL JJA
8.17: Proving facts
After attending a Judicial Dispute Resolution, the Parties attended at a law office to negotiate a settlement. The settlement meeting lasted all afternoon, and the Parties agreed on a number of issues in dispute. The Respondent wife alleged that the settlement negotiations continued, and a deal was eventually reached. The Trial was cancelled, but the Minutes of Settlement were not prepared before the husband’s counsel withdrew from the record. The Parties were then unable to agree that a settlement had been reached, and a Trial was ordered on the issue of whether the Parties had, in fact, arrived at a settlement. The Trial Judge held that a settlement had been reached.
The Appellant husband appealed on the basis that, inter alia, the Trial Judge erred in failing to ensure that all documents, particularly Affidavits, were entered as Exhibits at Trial. The Appellant argued that earlier Notices of Motion and Affidavits on which the Respondent was Cross-Examined had not been entered as Exhibits. The Trial Judge had advised the Parties that any issues regarding whether documents should be entered could be dealt with when the documents were raised in evidence. The Appellant argued that the Trial Judge had a duty to ensure that admissibility was dealt with when the Respondent was Cross-Examined on her Affidavits.
The Court of Appeal disagreed, and held that each litigant is responsible for tendering the evidence it seeks to have entered on the record. Pursuant to Rule 8.17, there is a presumption that evidence is given viva voce. If the Appellant wished to enter Affidavit evidence, he was required to provide an acceptable reason for doing so. The Appellant provided no such explanation. Further, the evidence at issue was not disallowed or entered over an objection. Rather, it was never tendered for entry on the Record. It is not the duty of a Trial Judge to determine whether a Party wishes to enter a particular document. The Appellant had the opportunity to elicit evidence in the Respondent’s Affidavits during Cross-Examination, failing which he could have Cross-Examined on the Affidavits. In this context, the Court held there was no merit to this ground of Appeal. The Appeal was dismissed.View CanLII Details