Shengli Oilfield Freet Petroleum Equipment Co. Ltd. v. Ascension Virtual Group Ltd., 2010 ABQB 795

Court of Queen ’ s Bench of Alberta Citation: Shengli Oilfield Freet Petroleum Equipment Co. Ltd. v. Ascension Virtual Group Ltd., 2010 ABQB 795 Date: 20101210 Docket: 0901 16799 Registry: Calgary Between: Shengli Oilfield Freet Petroleum Equipment Co. Ltd. Plaintiff/Applicant - and - Ascension Virtual Group Ltd. Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ [ 1 ] This matter was before me in morning chambers to deal with setting an appeal from the master over to a special application. The parties have agreed on a date when the appeal will be heard and the special chambers application has been set. [ 2 ] The Appellant seeks to introduce new evidence before the judge hearing the appeal. They propose that the judge hearing the appeal deal with the issue of whether the new evidence is admissible.

The Respondents on appeal say that the new rules require that the admissibility of the evidence be determined before the matter reaches the judge hearing the appeal itself. This of course requires a two step process: one judge to review everything and determine whether the new evidence meets the threshold test set out in the rule with the second step being the hearing of the appeal itself.

[ 3 ] The new Rule 6.14 (3), (5),and (6) reads as follows: 6.14

(3) An appeal from a master's judgment or order is an appeal on the record of proceedings before the master and, if the judge permits, may also be based on new evidence that is significant enough that it could have affected the master's decision.

(5) The appellant must file and serve on the respondent to the appeal, one month or more before the return date scheduled for hearing the appeal, (

a) the transcript of proceedings described in subrule (4)(

c) or, if the transcript is not available at the time of filing, confirmation that the transcript has been ordered, unless the Court dispenses with the requirement for a transcript under subrule (4)(c), (

b) any new evidence sought to be relied on, subject to the limitation described in subrule (3), and (

c) any further written argument.

(6) The respondent to the appeal must file and, within 10 days after service of the record of proceedings, serve on the appellant (

a) any further written argument the respondent wishes to make, and (

b) any new evidence sought to be relied on, subject to the limitation described in subrule (3). [ Alta. Reg. 124/2010 r6.14 effective November 1, 2010 (Alta. Gaz. August 14, 2010)] [ 4 ] The difficulty is the wording of 6.14(5)(

b) and (6)(b). The Appellant and Respondent must file within certain timelines before the appeal, any new evidence sought to be relied on subject to the limitation described in subrule 3. A literal reading of the

section would seem to indicate that the new evidence sought to be filed and relied on in the appeal can only be filed after it is determined whether it complies with the limitation set out in the rule. This necessitates a two step process. [ 5 ] It does not appear practical to do this. It would only increase the time and expense to the parties to appeal a decision of the master. It would in effect require two judges to fully review all of the material relevant to the appeal. The first judge would review all of the material to decide if the new evidence met the test set out in the rule.

The second judge would then decide the appeal. That cannot be what was intended when the new rules came into force. [ 6 ] Rule 6.14(3) is clear. The appeal is on the record plus any new evidence that meets the limitation set out in the rule. It would perhaps alleviate the confusion if the words subject to the limitation described in subrule (3) were removed from Rule 6.14(5)(

b) and (6)(b). That way, a party would file any new evidence they intend to rely on along with the rest of their material. It would then be up to the Judge hearing the appeal to decide if the new evidence meets the limitation set out in 6.14(3). [ 7 ] This does not deal with the further argument of counsel for the Respondents which is how to deal with new evidence served in advance of the hearing of the appeal. One can do nothing and argue at the appeal that it does not meet the test set out in the rule for allowing new evidence.

If that argument fails, the party opposite has nothing before the court to address the new evidence. On the other hand, one could elect, when served with the new evidence, to cross-examine on that evidence and prepare evidence to rebut it. If this latter route is selected, as counsel for the Respondents argues here, one is almost conceding that the new evidence may be significant when in fact it may not be and counsel worries that the court may be more inclined to allow the evidence in as it has been tested by cross examination and rebuttal evidence.

[ 8 ] Fresh evidence applications have been before the trial courts and courts of appeal for a long time. The courts are experienced in dealing with the threshold tests for allowing new or fresh evidence. It is difficult to imagine that an opposing party would not be given an opportunity, should they wish, to address new evidence which may be allowed in even if that entailed an adjournment of the hearing.

On the other hand, having the cross examination and rebuttal evidence ready in respect of the new evidence would allow the matter to be dealt with expeditiously if the court determined that the new evidence met the threshold test. [ 9 ] I am therefore not prepared to determine the admissibility of the new evidence in advance of the hearing of the appeal. I am satisfied that despite the wording of Rule 6.14(5)(

b) and (6)(b) , a two step process was not contemplated in the new rules. The new evidence will be filed and served along with the rest of the material and it will be up to the judge hearing the appeal to determine if it meets the test set out in Rule 6.14(3). [ 10 ] There will be no costs to either party of this application. Heard on the 07 th day of December, 2010. Dated at the City of Calgary, Alberta this 10 th day of December, 2010. C.L. Kenny J.C.Q.B.A. Appearances: Shaun B. Cody for the Plaintiff/Applicant Richard J. Cotter, Q.C. For the Defendant/Respondent