Legalviews Personal

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

RECYCLING OLD EVIDENCE OR RECORDS