The Applicant brought an interim Application to admit an Affidavit as an expert report; the deponent had died prior to the commencement of Trial. The Defendant opposed the Application.

The Court considered Rule 8.17 as it relates to read-ins at trial of affidavit evidence of a deceased witness. The Court noted that the Rule provides that the Court could order that facts may be proven by affidavit, but where the opposite party has a bona fide desire to cross-examine, and a witness can be produced, the court shall not authorize that the evidence be given by affidavit.

Instead, if the evidence of the deceased was to be admitted by affidavit, it must be by way of exception to the hearsay rule. In that regard, the Court must find that the Affidavit meets the threshold of necessity and reliability, and then weigh the competing prejudice to the parties. At that time, even if the affidavit is admitted under the hearsay rules and Rule 8.17, the affidavit must still conform to other rules of evidence. In other words, evidence that would not be permitted in viva voce testimony should not be permitted by way of Affidavit.

The Defendant acknowledged that the deponent’s death established the necessity element of the hearsay test. In assessing reliability, the Court took specific note of the inclusion of several statements of double hearsay in the Affidavit, which are weaker and less reliable and of little probative value as to be no use to the Court. In that vein, the Court provided no weight to specific paragraphs contained in the Affidavit.

Similarly, the Court acknowledged as trite law that all evidence must be relevant to an issue at trial. As such, the Court found a portion of a paragraph irrelevant and not an issue of the Trial and afforded it no weight.

Finally, with respect to consideration of the Affidavit as expert evidence, the Court noted the criteria that governs when expert evidence includes: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert. There was no evidence before the Court that the deponent had expertise and, as such, he was not qualified as an expert.

With respect to whether the prejudicial effect outweighs the probative value of the evidence contained in the Affidavit, the Court noted the time between service of the Affidavit and the death of the deponent, as well as the clear indication of the Defendant’s desire to cross-examine on the Affidavit, caused prejudice to the Defendant. On the other hand, the Plaintiffs had no other opportunity to obtain similar evidence from anyone contemporaneous with the dispute and, as such, the prejudice was found to weigh in favour of admission.