April 15, 2024

Recycling Old Evidence or Records

April 10, 2024

Poor Record Disclosure Bites

April 3, 2024

History of the Drop-Dead Rule

March 26 , 2024

The Aims and Results of Costs

March 18 , 2024

More Troubles Filing and Serving Court Documents

March 14 , 2024

Precedents About Facts

March 11 , 2024

Question of Law or Fact?

February 29 , 2024

Disclosure in Chambers

February 21 , 2024

Not Attending a Hearing

January 31 , 2024

The Suggestions Box

January 2 , 2024

Plain Language for Lawyers

December 15 , 2023

Limitation Periods Have Shrunk

November 30 , 2023

Advocacy's Key

November 28 , 2023

Motions Fritter Away Time and Money

November 27 , 2023

Will Foreclosure History Repeat Itself?

November 21 , 2023

Rules of Court Bind Even the King's Bench

November 2, 2023

Records and Affidavit of Records

November 2 , 2023

Uncommon Law

October 20 , 2023

Expanding Judicial Review Evidence

June 22, 2023

Competition v. Benefits

June 19, 2023

Clogged Courts

June 12, 2023

Preparing Applications in Uncertain Conditions

May 8, 2023

Competence is a Delicate Flower

March 30 , 2023

Urgent! Very Hard to Meet a Limitation Period

March 13 , 2023

Parties to Planning Appeals

March 7 , 2023

Costs in Family Law Litigation

January 30 , 2023

Dodging Settlement Privilege

January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2024



Sometimes a party wants to use an affidavit filed earlier for another application, to meet someone else’s newer application in the same lawsuit. Of course one must give notice of that. More serious is allowing cross-examination on that earlier affidavit. Whether or not it was examined on earlier, the issues on the new application are probably different from those on the earlier application. Sometimes the document now to be relied on was not an affidavit, but some other type of evidence. Cross-examination is usually allowed.

Overlapping is a different topic. How about records or evidence on the court files for a different lawsuit, maybe a lawsuit with different parties? Can such evidence be used in the new lawsuit? The court can take notice of its own previous actions, such as ordering A to pay B, or dismissing some appeal, or what defence someone pleaded in another lawsuit. But how about evidence from non-court sources filed for another lawsuit in this court? A simplified answer may be that Rules or legislation often make such evidence admissible. But that is subject to two very serious qualifications.

First, the opposing party should be able to cross-examine or otherwise refute that evidence. Especially if he or she was not a party to the other lawsuit, or the issues were different there. A Rule or legislation allowing such evidence does not remove the right to cross-examine.

Second, Rules or legislation making such documents or a copy of them admissible, do not extend the effects of evidence. In particular, they do not make such items evidence of the truth of what they recite (unless that legislation expressly says that they do). Usually such legislation simply bypasses calling a witness to identify the document, or requiring production of the original document. No more. A transcript from another suit of a witness testifying that some car drove through a red traffic signal, is almost certainly cannot be used between different parties in a newer suit, to prove that the light was indeed red.

See Anglin v. Resler 2024 ABCA 113, Edm 2203 0154 AC (Apr 5) (¶’s 19-36).

That decision also covers an unrelated point. A chambers judge had tried to avoid delay in a suit by forbidding filing any more evidence to combat a long-pending application. The Court of Appeal said that such an order is sometimes proper, but that excluding evidence and so keeping the truth away from the judge deciding the application, can be very harmful. The parties should not schedule an application until all the necessary evidence has been filed, said the Court (¶ 40). Delays are very long now, and the electronic filing systems for applications are complicated, and may forbid even launching an application without reserving a date. Some such restrictions are not express, but may be the practical result of a combination of more than one court bulletin or Clerk’s procedure. In other words, present serious backlogs and lack of court resources may have the tail wag the dog.

– Hon. J.E. Côté


The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at:

email: or phone 780-424-5345.