Barker v. Budget Rent-A-Car of Edmonton Ltd., 2011 ABQB 123

Court of Queen ’ s Bench of Alberta Citation: Barker v. Budget Rent-A-Car of Edmonton Ltd., 2011 ABQB 123 Date: 20110301 Docket: 1003 09139 Registry: Edmonton Between: Michael Lee Barker Plaintiff/Respondent - and - Budget Rent-A-Car of Edmonton Ltd. Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Applicant/Defendant Budget Rent-A-Car of Edmonton Ltd. ( “ Budget ” ) seeks an Order striking Paragraph 7 of the Affidavit of Michael Barker sworn November 1, 2010 on the basis that the evidence given by Michael Barker is hearsay and contains a legal opinion. The disputed paragraph 7 reads as follows: –

7. In a letter dated May 10, 2007, William Ostapek, Director of Legal Services, Workers’ Compensation Board, notified legalcounsel for Budget of the potential liability of Budget for the Accident under the vicarious liability provisions of the Traffic Safety Act.Based on this letter, I do verily believe Budget had notice of the nature and basis of the claim to be brought against them as early as May10, 2007 and the timing of proposed amendment to the Statement of Claim does not prejudice Budget. Attached as Exhibit “C” to myAffidavit is a copy of said letter.

Exhibit “C” reads as follows:– CLEALL BARRISTERS & SOLICITORS 2500 COMMERCE PLACE 10155-102 STREET EDMONTON, AB T5J 4G8 ATTENTION: DAWN PENTELECHUK DEAR MADAM: RE: MICHAEL BARKER DATE OF LOSS: MAY 17, 2006 Thank you for your letter of May 3, 2007. As requested, I have reviewed the materials provided by you in the above noted matter together with materials already on our files.Based on my review of this material, I am unable to change the decision originally reached by Lori McEachern as it relates to the statusof your client, Budget Rent-A-Car of Edmonton Ltd.

Section 23(1) of the Workers’ Compensation Act stipulates that an employer is entitled to immunity from lawsuit where that employer’sconduct caused or contributed to the injury and the conduct arose out of and in the course of employment in an industry to which the Actapplies. In the present case, it is not alleged that the conduct of your client caused or contributed to the injury of Michel Barker, Instead,potential liability arises under the vicarious liability provisions of the Traffic Safety Act.

As such, Budget Rent-A-Car is not entitled toimmunity from suit under section 23(1) of the Workers’ Compensation Act. As you may be aware, this very issue was dealt with by the Alberta Court of Appeal in Lepine v. Fraser and Budget RentA-Car (1985)1985 ABCA 38 , 18 D.L.R. (4th) 156 (AIta. CA.). The facts in the Lepine case are essentially identical to those in the presentcase and the applicable legislative provisions dealt with in that case remain in effect.

The Court in Lepine ruled that merely having statusas an employer under the Workers’ Compensation Act is insufficient to grant an employer immunity under the Act, In order to obtainimmunity, the employer must satisfy all of the requirements of what is now section 23(1) of the Workers’ Compensation Act. I am of theopinion that Lepine remains determinative of the issues currently before us in the present case.

Since I am unable to change the decision originally made by our department in this matter, I am forwarding this case to the DisputeResolution and Decision Review Body for review as you had originally requested. Their offices will be in touch with you in due course. Yours truly William P. Ostapek

[ 2 ] The Respondent/Plaintiff submits there is nothing improper regarding the evidence in the Barker Affidavit with respect to the interlocutory application to amend the Statement of Claim. [ 3 ] Rule 3.68(4)(a) (previously Rule 305(3)) states: – The Court may: (

a) strike out all or part of an Affidavit that contains frivolous, irrelevant or improper information. [ 4 ] The Alberta Court of Appeal addressed the issue of hearsay evidence contained in an Affidavit in Proprietary Industries Inc. v. Workum , 2006 ABCA 226 at paragraphs 8 and 9 : – 8 Second, Rule 305(3) is not restricted to hearsay evidence that meets common law exceptions. It is apparent from a reading of her decision that the chambers judge erred by considering Rule 305(3) to be subject to the common law with respect to hearsay. If that is correct, Rule 305(3) serves no useful purpose.

If hearsay is only permitted if it meets common law exceptions, the evidence is receivable in any event. 9 A chambers judge hearing an application in which a party proposes to rely on hearsay may still turn to the common law for guidance as to the reliability of the hearsay; the chambers judge may decide that the hearsay merits little or no weight because it is unreliable. However, it is preferable that such rulings be made by the chambers judge who hears the application in which the hearsay evidence is relied on, as that judge will have the advantage of being cognizant of all the evidence.

To some extent, the hearsay evidence will gain or lose reliability depending on its fit within the context of the entire case. [ 5 ] In Bank of Montreal v. Lysyk , 2002 ABQB 837 at paragraphs 8 and 9 Veit J. explored the issue of hearsay evidence in the context of an interlocutory motion. She noted: – 8 If, however, this were to be described as an interlocutory matter, not a final one, affidavits on information and belief may be allowed.

However, as summarized by Stevenson & Cote, a court is not bound to allow affidavits on information and belief to be filed: "Even where the motion is interlocutory, using statements made on information and belief should be avoided if possible". . . 9 The Rules authorize the removal of material from affidavits: R. 307.

Although it is not always necessary to remove oppressive and irrelevant or hearsay material from an affidavit, as a simple statement from the court that the material will not be relied on suffices, the counsel of perfection would be to treat a judge sitting alone as if the judge were a jury, and to ensure that material that would not be allowed before a jury should be removed from the judge's scrutiny. [ 6 ] Affidavit evidence may also be struck if it contains legal conclusions or opinions that are otherwise the purview of the Court, such as was found in Banff Transportation and Tours Inc. v.

Buchan , 2002 ABQB 423 where Crumka J. struck an Affidavit as that Affidavit respected a person ’ s

interpretation of a Court Order. Part of the Affidavit was struck as it “ shades towards a legal conclusion ” . [ 7 ] The Applicant/Defendant Budget submits that paragraph 7 of Mr. Barker ’ s Affidavit is offensive for two reasons: (

a) The deponent provides hearsay evidence on the issue of prejudice;

(

b) It contains a legal opinion on the

interpretation and applicability of Lepine v. Fraser . Conclusion [ 8 ] On or about April 25, 2008 the Plaintiff filed a Statement of Claim regarding injuries he suffered in a motor vehicle accident. On November 2, 2010 the Plaintiff filed an Amended Notice of Motion for an interlocutory order for leave to permit the Plaintiff to amend the Statement of Claim. In support of the application to amend the Plaintiff swore the Barker Affidavit on November 1, 2010.

In paragraph 7 of the Affidavit, the Plaintiff provided evidence based on information and belief. [ 9 ] The issue before this Court is whether or not paragraph 7 of the Affidavit is improper and should be struck. [ 10 ] The Respondent Workers ’ Compensation Board relies on Rule 13.18 of the Alberta Rules of Court : – Types of affidavit 13.18(1) An Affidavit may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person ’ s belief.

(2) If an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit.

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. [ 11 ] The Respondent Workers ’ Compensation Board also relies on

Section 149 of the Workers ’ Compensation Act , R.S.A. 2000, c. W-15: – Board ’ s certificate 149 A certificate purporting to be signed by the secretary (

a) setting out the substance of any order, ruling or decision of the Board, or (

b) setting out information from any books, records, documents or files of the Board in the form of an extract or description shall be admitted in evidence as proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the signature or official character of the person signing it.

[12] The common law in Alberta and the Alberta Rules of Court provide for Affidavit evidence that is based on informationknown to the person swearing the Affidavit and that person’s belief. In Conway v.

Zinkhofer, 2006 ABCA 74 at paragraphs 18 and 19the Court of Appeal made note of Rule 305(3) of the Alberta Rules of Court, in discussing whether or not the chambers judge erred inadmitting and relying on hearsay evidence: 18 Rule 305(3) of the Alberta Rules of Court, provides: On interlocutory motions affidavits containing statements as to belief of the deponent with the source and grounds thereof may beadmitted. 19 Given that this was an interlocutory motion, we see no error in the reliance on an affidavit containing hearsay evidence. [13] Rule 13.18 of the new Alberta Rules of Court also provides for the inclusion of information in an Affidavit that is not basedon the personal knowledge of the affiant. [14] In this case, the Application to Amend is interlocutory in nature and as such the statements in the Barker Affidavit which arebased on information and belief should be admitted. [15] The test for distinguishing an interlocutory from a final matter is whether the judgment or order finally disposes of the rightsof the parties.

This was discussed by the Alberta Court of in CIBC v. Williams, 2007 ABCA 340 at paragraph 11:– . . . Rule 305 of the Alberta Rules of Court, states that an affidavit shall be confined to facts within the knowledge of the deponent.Subsection 305(3) provides an exception for interlocutory motions where affidavits may contain statements as to the belief of thedeponent. Generally, affidavits in an application for an order which is final in nature may not contain hearsay: see Wright v. RiderResources Inc. (1994), (AB KB), 21 Alta. L.R. (3d) 149 at 154 (Q.B.).

The test for distinguishing an interlocutoryfrom a final matter was stated in Bozson v. Altrincham Urban District Council, [1903] 1 K.B. 547 (C.A.). The question is whether thejudgment or order finally disposes of the rights of the parties. If it does, then it should be treated as a final order. [16] The Plaintiff’s Application to Amend if successful, does not dispose of any rights of Budget and consequently would not be afinal order. [17] The Barker Affidavit stipulates that the evidence provided is based on personal knowledge except where stated to be based oninformation and belief.

In paragraph 7, Michael Barker deposes his belief that based on his review of a letter from the WCB to Budget’slegal counsel dated May 10, 2007, Budget became aware of the claim against them on or before that date. [18] I conclude that there is nothing about the information in paragraph 7 of the Barker Affidavit that is frivolous, irrelevant orimproper. [19] The Applicant to Amend addresses the timing of the proposed amendment. One of the issues surrounding the proposedamendment is whether or not the timing of the proposed amendment causes prejudice to Budget.

In this regard the Plaintiff’s evidenceregarding his belief of the timing of Budget’s awareness of the claim against them is relevant. [20] Finally notwithstanding the Applicant’s contention that the Barker Affidavit contains legal conclusions,

Section 149 of theWorkers’ Compensation Act, allows for the admission of WCB records as evidence through the filing of a certificate signed by the WCBSecretary. Such a certificate attaching the May 10, 2007 Letter was filed in the within action on February 10, 2011. [21] The Rules of Court and common law provide for evidence to be sworn on the basis of information and belief and hearsay

evidence is permitted in interlocutory applications. In this instance, the Plaintiff ’ s Application to Amend is interlocutory in nature and if granted, will not result in a final order or dispose of the rights of Budget. Evidence based on information and belief, and specifically paragraph 7 of the Barker Affidavit in support of the Application to Amend is not improper. [ 22 ] I conclude that paragraph 7 should allowed to stand, but the weight I give to that paragraph will still have to be determined. The Applicant/Defendant ’ s preliminary application to strike paragraph 7 of the Barker Affidavit is dismissed.

Heard on the 24 th day of February, 2011. Dated at the City of Edmonton, Alberta this 1 st day of March, 2011. Donald Lee J.C.Q.B.A. Appearances: Geoffrey W. Coombs Workers ’ Compensation Board for the Applicant/Plaintiff Dawn Pentelechuk, Q.C. Cleall for the Respondent/Defendant