The Plaintiff in this Action claimed damages arising from environmental contamination of certain lands that were previously owned by the several of the Defendant railway companies (“CN Defendants”).

The CN Defendants applied under Rule 8.17 for an Order permitting certain facts to be proven at Trial by admitting an Affidavit sworn by Mr. Don Hussey (the “Hussey Affidavit”). Mr. Hussey was a former employee of one of the CN Defendants. The Hussey Affidavit was sworn in support of an unsuccessful Summary Judgment Application. Mr. Hussey died before the Summary Judgment Application was heard.

The Court noted that Rule 8.17 requires facts to be proved at Trial by the evidence of a witness unless the Court orders otherwise. The parties agreed that the Hussey Affidavit was hearsay but that it could potentially be admitted if it meets the principled exception to hearsay. In other words, the Hussey Affidavit could be admitted if it was necessary and reliable (Canmore Mountain Villas Inc. v Alberta (Minister of Seniors and Community Supports, 2010 ABQB 498).

The Court was satisfied that the Hussey Affidavit met the criteria for necessity. The Plaintiff did not dispute that Mr. Hussey would have been one of the CN Defendants’ key witnesses. Rothwell J. noted that the death of a witness will, in most situations, be sufficient to meet the necessity criteria. The Court also noted that Mr. Hussey’s death was unexpected and that this was not a situation of the CN Defendants ignoring an unhealthy witness.

The Court was also satisfied that the Hussey Affidavit met the threshold test for reliability. The CN Defendants relied on reliability factors set out in Jans v Jans, 2015 SKQB 226, which the Court accepted as relevant considerations. The Hussey Affidavit was sworn under oath and the Court inferred from Mr. Hussey’s past involvement in the litigation that he would have anticipated being cross-examined on his evidence. The Court also noted that Mr. Hussey was questioned and that this evidence would assist in assessing the consistency of Mr. Hussey’s evidence. Rothwell J. also noted that Mr. Hussey was not motivated to lie and that the Court had no concerns with the circumstances in which the Hussey Affidavit was sworn.

Finally, the Court considered whether the Plaintiff had established prejudice weighing in favour of excluding the Hussey Affidavit. Rothwell J. determined that the Plaintiff’s inability to cross-examine Mr. Hussey created the most significant prejudice for the Plaintiff. However, the Court determined that the CN Defendants would be more prejudiced by the Hussey Affidavit not being admitted.

Given the above, the Court exercised its discretion to admit the Hussey Affidavit. However, the Court noted that its ruling on admissibility was subject to a final determination on the Plaintiff’s objections to admitting certain paragraphs of the Hussey Affidavit.