Legalviews Personal

A recent decision about delayed prosecution of a suit and Rr. 4.31 and 4.33, discusses two propositions of general interest.

First, the decision concludes that an affidavit of records can be a significant advance in the suit, even if it merely swears that no records are currently possessed. So the affidavit breaks up any inactive period to less than 3 years, escaping the “drop-dead” R. 4.33. Though the affidavit did not disclose new evidence, it prevented any later production of records, it saved some discovery steps, and it now protects the defendant against later submission of written or similar evidence (¶’s 41-52). That seems sound, so long as no soft-hearted decision later allows later production of some records and waives R. 5.16. However, given the vague grounds in R. 5.16, it might be safer to require more safeguards. A plaintiff could be ordered not to seek waiver later, or to allow (with costs to the defendant) a renewed motion to dismiss under R. 4.33, if undisclosed evidence is later tendered.

But another brief passage in the judgment does raise concerns. A host of decisions say that under R. 4.31, fading memories from long delay must not be brushed aside. See Humphreys v. Trebilcock 2017 ABCA 116, [2017] 7 WWR 343 (¶’s 182-184 and n. 106), leave den (SCC 14 Dec. 2017); Song v. Fong 2019 ABQB 119 (Feb 26) ((¶’s 32 ff); Edinburgh Tower Dev. v. Curtis 2021 ABQB 239 (Mar. 29) (¶’s 51-54), affd 2022 ABCA 419 (Dec 22).

In this new case, the plaintiff got around that by complaining that no specific prejudice from fading witness memories was pointed to, nor had the defendants pointed to specific witnesses whose memories are at risk of fading. And mere assertion of fading memory was not enough, says this decision. It recites that there was no evidence that key players lacked memory, and one deponent had been cross-examined and seemed to have memory (¶’s 86-89).

But all that relies on several incomplete or mistaken propositions. First, the case law sets up a general likelihood, even a virtual certainty, of fatal fading memories after some years of delay. See Humphreys v. Trebilcock, supra (¶’s 184-185); Owners Condo. Plan 982 6403 v. CPI Crown Prop. 2017 ABQB 562 (Sep 20) (¶ 64); Zachry Enr. Int. v. Sinopec Eng. Co. 2021 ABQB 969 (Dec 7) (¶’s 19, 36-37), affd 2024 ABCA 24 (¶’s 6-7) (Jan 22). And this lawsuit was started a little short of 8 years ago, and the lawsuit is all about a fire almost 10 years ago. A trial will occur even later than that in the future. Time elapsed since the fire is very relevant: Hudson v. Garreck 2012 ABCA 111 (Apr 5) (¶’s 8, 9); Cochrane (Town) v. Austech Hldg. 2021 ABQB 666 (Aug 20) (¶’s 184 ff.), affd 2022 ABCA 377 (Nov 21) (¶’s 37-40); Edinburgh Tower Dev. v. Curis, supra (¶ 51). It is highly unlikely that memories have not faded after so many years. No one alleges that present memories supply what is necessary, and the plaintiff now swears that none of its records survive or exist (as noted above). This is not a case where there could be only one, or even two, witnesses. The building which burned was rented out to various tenants. The lawsuit has one or two third-party proceedings as well as the main action.

Second, requiring the defendant to give evidence of faded memory is backwards; after some years, fading memories are presumed. The onus of proof is on the party alleging that the memories have not faded, or are not needed as evidence. As noted, case law says that such serious fading is virtually certain after a certain number of years. On evidence not being necessary, see Trademark Calgary Hldg. v. Hub Oil Co. 2019 ABQB 42 (Jan 21) (¶’s 84 ff.); Zachry Enr. Int. v. Sinopec Eng. Co., supra (¶ 10).

Third, any need for evidence would be a Catch-22. It is usually impossible to give evidence of prejudice from fading memories. Ordinarily no one could swear to that topic except the person whose memory was in issue. That witness cannot swear that “I used to remember the following details, but now I have forgotten them.” If he or she did swear that, it would be proof that his or her memory had not faded. See Wyant Est. v. St. Arnault (1985) 63 AR 91, 96 (¶ 11), affd (CA 1986) 70 AR 76; Leung v. Can. Safeway (1993) 173 AR 390, 393 (¶ 12), affd (CA 1995) 174 AR 176; Humphreys v. Trebilcock, supra (¶’s 184-85, and n. 106). Some of that case law is about lost witnesses or records, but the logical impossibility is virtually identical with lost memory.

Finally, looking into whether there is any lost memory now, is impossible for another reason. Pleadings only show factual allegations, and are forbidden to recite how the facts will be proved or disproved. One cannot ask about that on examination for discovery (questioning), nor need any affidavit of records go into that. Under the usual form, such affidavits never do. Parties need to tender oral evidence at trial for various reasons. Proving that party’s own case or own defence is not the only one. A party often has to lead oral evidence at trial to rebut his or her opponent’s evidence. That is impossible to decide, or to plan, until the end of the opponent’s evidence in chief, and the end of the cross-examination on that evidence. Where a lawsuit has 3 or 4 parties, and any other non-parties (such as employees or accountants) may have some knowledge, then assuming that no relevant witness could have had a fading memory, is very unfair. If one witness seems to have a good memory, that does not answer for memories of everyone else involved. Besides, a person may have a good memory of some events or some topics, and not others. Calling a certain witness may seem completely unnecessary until the opposing party puts in at trial some surprising and dubious evidence. What if someone testifies at trial, that the other side made a very damaging oral admission just after the fire? See Humphreys v. Trebilcock, supra (¶ 184).

When a witness dies or goes missing, on a R. 4.31 motion to dismiss, it is only necessary to see if the absent person was involved in important matters. It is never necessary to show what evidence he planned to give, or to decide who would have won the suit were the lost person present to testify. Why require that here? Is a witness with no relevant memory any more helpful to the defendant or the court?

The recent decision being discussed is Antiquarian Bookstore v. Villetard's Eggs 2024 ABKB 699 (Nov 26).

– Hon. J.E. Côté

DELAYED PROSECUTION OF A SUIT