Docket: 0003 10282 410675 Alberta Ltd. Plaintiff - v. -, 2011 ABQB 151

Court of Queen ’ s Bench of Alberta Citation: 410675 Alberta Ltd. v. Trail South Developments Inc., 2011 ABQB 151 Date: 20110309 Docket: 0003 10282, 0203 07239 Registry: Edmonton Between: Docket: 0003 10282 410675 Alberta Ltd. Plaintiff - and - Trail South Developments Inc. Defendant and Between: Docket: 0203 07239 B &R Development Corporation Ltd., operating under the trade name of “ Abbey Lane Homes ” Plaintiff - and - Trail South Developments Inc. Defendant _______________________________________________________ Reasons for Judgment of the

Honourable Madam Justice L.J. Smith _______________________________________________________ [1] These reasons pertain to the defendant’s proposed read-ins which are disputed. The read-ins proposed are found in Exhibit27 under a series of tabs. Under each tab are the read-ins from Examination for Discovery or Examination on Affidavit (agreed to betreated as Discovery) from a calendar year. The read-ins following will be identified by year, page and lines. [2] The Rule which applies to this dispute is Rule 5.31 (3) which is slightly different from the old Rule 214 (4). Thejurisprudence applies to the old Rule.

Therefore, both Rules are reproduced following. 5.31(3) If only a portion of a transcript or a portion of the answers to the written questions is used, the Court may, on application, directthat all or each other portion of the transcript or answers also be used if all or any other portion is so connected with the portion used thatit would or might be misleading not to use all or any other portion of the transcript or other answers. 214(4) If part only of an examination is used, the Court may at the request of any party against whom it is so used direct that any otherpart of the examination be also used, if it is so connected with the part so used that the first mentioned part ought not be used without theother part. [3] The parties have provided a number of cases to assist in the

interpretation of the Rule 214 (4). There was no seriousargument that the two Rules differ on the test other than noting that the words “or might be misleading” in the new rule may create aslightly softer test under the new rule. [4] Raywalt Construction Co. v. Bencic 2005 ABQB 989 permits connected additions to read-ins when “...it is necessary tomake its meaning clear”, “...to clarify an answer or set of answers which have been selected out of proper context or in a manner whichwould leave a misleading impression of the meaning of the answers.” (para. 159).

On the other hand the other party cannot seek to add toread-ins because the addition “touches on the same topic and provides a different spin on what happened.” (para. 160). [5] In 1159465 Alberta Ltd. v. Atwood Manufacturing Ltd., 2009 ABQB 570, the question of fairness is introduced to the test(para. 12). “The question is fairness based on the questions asked, not the mere content of the answer...

Among the tests for “connection”are continuity of thought or subject matter, the reason the evidence was introduced in the first place, and fairness so that the entireanswer of a witness and not just part of his answer is before the court on a particular subject.” (Civil Procedure Encyclopedia [Stevensonand Cote, at volume 3, page 45-10]. [6] In my view, the foregoing jurisprudence would permit an addition to an otherwise proper read-in which might be misleading.Therefore, there is no change to the old rule. [7] The test is succinctly set out in Murphy Oil Co. v.

Predator Corp. 2002 ABQB 403 at para. 14 - 15: [14] ... The authorities are clear that R.214(4) cannot be used to put before the Court all that the witness has said on a particular topic.It is limited to adding the rest of a specific answer or clarifying a passage which has been taken out of context or may be misleading(Edmonton (City) v. Lovat Tunnel Equipment Inc. et al. (2000), 262 A.R. 244 (Q.B.) at para.19, citing 155569 Canada Ltd. v. 248524Alberta Ltd. (1993), (AB KB), 21 C.P.C. (3d) 159 (Alta.Q.B.) at 163; and Dix v. Canada, 2002 ABQB 196; [2002]A.J. No.238 (Q.B.) at para.2).

[15] The issue here is whether the Predator Defendants’ proposed additional read-ins are so connected to the question or topicreferred to by Apache in its read-ins that the proposed read-ins should be allowed. [8] From Dix v. Canada (Attorney General) 2002 ABQB 196 at para. 2 “A...witness cannot insist that all he has said on thesubject be read in.

But he can add to half an answer, or one which is misleading out t of context.” (Alberta Civil Procedure Handbook2000, Juriliber, at 172, Stevenson and Cote). [9] A number of objections to the read-ins related to the issue of whether the question ought to have been put to the witness.

Inaccordance with s. 22(1) of the Alberta Evidence Act following, if the intention is to contradict the witness the witness’s attention shallbe called to the writing. 22(1) A witness may be cross-examined with regard to previous statements made by the witness in writing, or reduced to writing, andrelative to the matter in question, without the writing being shown to the witness. [10] Neither party suggests that the rule from Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (HL) ought not to apply. [11] Further, from Guarantee Co. of North America v. Basse, (AB KB), [1992] A.J.

No. 323 at p. 64 With respect to the question of credibility, if the respondent counsel perceives that an answer given on the stand is in contradiction withan answer in the transcript of the examination-for-discovery, then the witness should be confronted in cross-examination with a readingfrom the transcript taking place and the witness being challenged. With respect to admissions, it is a very simple matter for counsel to summarize the admissions in the transcript that he or she wishes toestablish in evidence and to have the party (or officer of a Corporate party) confirm those admissions in cross-examination.

The witnesscan either confirm or deny the admissions. If they are confirmed, a read-in is not necessary. If the admissions are denied then I am of theview that it is the proper time to put any alleged admissions from the transcript to the witness and have the matter resolved, and if denialis still prevailing, to later read-in the admissions.

This practice is important for a number of reasons, not the least of which is to deal with the matter while it is fresh at hand, and, moreimportant, to prevent undue rebuttal, especially when rebuttal might take place some days later (particularly in the case of long trial), orwhen such a witness may need to be recalled from a distance. [12] From Envision Credit Union v. Canada, [2010] T.C.J.

No. 274 at paras. 8, 9, 10, 13 and 19: 8 I would prefer to characterize the possibilities in relation to the introduction of excerpts from the discovery examination of a witnesswho has testified during the hearing, as follows: Either: (

a) the discovery excerpts deal with matters that were dealt with by the witness during his or her testimony at the hearing; or (

b) the discovery excerpts deal with matters that were not dealt with by the witness during his or her testimony at the hearing. 9 If the discovery excerpts deal with matters that were dealt with by the witness during his or her testimony at the hearing, then itseems to me, as noted by the Appellant, that the answers given at discovery would either confirm the evidence of the witness given at

the hearing or would contradict or cast doubt on the evidence of the witness given at the hearing. 10 If the discovery excerpts reflect the same questions that are asked during the hearing and reflect the same answers, then there is no probative value in admitting the excerpts and the excerpts should be excluded on the same basis that prior consistent statements would be excluded. In most cases it would be the party whose witness testified during the hearing who would be trying to introduce a prior consistent statement of that witness, not the opposing party.

If the proposed read-in questions and answers from the discovery examination of Mr. Huston reflect prior consistent statements then it would be the Respondent who would be attempting to show that the Appellant's witness gave a prior consistent statement.

An unusual procedure but it seems to me that the rule against allowing prior consistent statements should still apply. 13 If the discovery excerpts are being introduced to impeach the witness, then the question and answer must be brought to the attention of the witness. 19 The other possibility is that the excerpts from the examination for discovery deal with matters that were not addressed during the testimony of the witness. It seems to me that this would be the most logical use of the rule permitting the read-in of discovery examinations.

If a party has obtained admissions from a witness during discovery examination it could shorten the hearing by reading in the questions and answers instead of asking the same questions again at the hearing. [ 13 ] The Rule cited for support in Envision is similar in effect to the one operating in this matter. [ 14 ] It is asserted by defence counsel that the proposed read-ins were put forth for the purpose of proving the admission rather than to undermine credibility, unless the passage was put directly to the witness.

Nevertheless, if the witness has given evidence at trial on the point to which the read-in relates, then the question of its admissibility must be determined. [ 15 ] In Guarantee , supra, the court commented upon the better practice being for the defendant to put potential admissions to the plaintiff. Aside from the use of discovery evidence to confront the witness with inconsistencies, the court suggests that read-ins ought to be put to deal with the matter when it is fresh and to prevent undue rebuttal. [ 16 ] In Edmonton (City) v. Lovat Tunnel Equipment Inc. [2000] A. J.

No. 404 the court did not accept this better practise since it seems adverse to the plain reading of the rule permitting read-ins and the plaintiff’s obligation to deal at trial with its own evidence from discovery in direct at trial (at para. 34 to 36). [ 17 ] Civil litigation turns on a fine balancing of the evidence. If an admission from discovery is not addressed by the plaintiff in chief it must be assumed that it was not an oversight and it is open to the defendant to also leave the admission unaddressed at trial and to rely on the favorable admission received through the discovery process.

This is particularly so if the admission is material to the plaintiff’s case. [ 18 ] However, often the matter is not this clear. Usually the witness has made comments at trial around an issue related to a read-in sought by the defendant. The question will be whether the read-in adds to the answer given at trial or does it contradict the answer given at trial. Assuming the read-in adds to and contradicts the trial evidence then it may be admissible unless it amounts to a prior consistent statement. The Disputed Read -ins [ 19 ] All of the proposed read-ins are from the pretrial evidence of Mr.

Mastroprimiano who testified for the plaintiffs. The read- ins are from questioning which took place in 2000, 2001, 2002, 2004, 2006, 2007, 2009 and 2010. The disputed read-ins are dealt with following in two sets. The first set, numbers 1 through 10, was argued in open court with a followup letter from defence counsel. That letter has now been marked exhibit 28.

[ 20 ] The second set of disputed read-ins numbered 11 to 21 following were set out in a letter from plaintiffs’ counsel, now marked exhibit 29. Counsel for the defendant responded by letter now marked exhibit 30. [ 21 ] It was and remains my view that it is in the interests of justice that argument be received on the second set of read ins. While the parties are presumed to know of their admissions made at questioning previous to the trial, the defendant’s read-ins were voluminous, time for the plaintiffs to respond was short and the discovery evidence was both extensive and historical.

The plaintiffs made their second set of objections known quickly. The defendants were given ample time to respond. 1. 2000, Page 12, Lines 4 to 8 [ 22 ] In this read-in Mr. Mastroprimiano admits that Mr. Bereznicki was the man making the decisions. There is no evidence to the contrary in Mr. Mastroprimiano’s trial evidence. There is almost no evidence in any way related to this point in his trial evidence. Therefore the read-in is admissible. 2. 2000, Page 18, Lines 5 to 18 [ 23 ] In this read-in Mr. Mastroprimiano admitted to instructing Mr. Lupul on March 15 to advise Mr.

Little that 410675 was not satisfied with clause 4 (

e) of the new / extension agreement. Mr. Mastroprimiano gave no evidence to the contrary at trial. His trial evidence on the notes on the draft documents and his reliance on his lawyer’s record keeping does not support an inconsistent conclusion. Therefore, the read-in is admissible. 3. 2000, Page 25, Lines 1 to 17 [ 24 ] In this read-in Mr. Mastroprimiano admitted that as of March 24, 2000 he was still having discussions with his lawyer regarding amendments to the new / extension agreement. Mr. Mastroprimiano gave no evidence to the contrary at trial.

Therefore, the read-in is admissible. 4. 2001, Page 7, Line 9 to 13 [ 25 ] In this read-in Mr. Mastroprimiano admits that the land would have been sold by 410675 to a joint venture company and that this was always intended. [ 26 ] Page 6, Line 18 through to Page 7 Line 13, the passage immediately prior to the read-in, was added by agreement to this read- in at the hearing. In that addition Mr.

Mastroprimiano admitted that the transfer could have been to a new company or a joint venture company with B & R / Abbey Lane being the builder and beneficiary of its part. [ 27 ] The following read-ins if allowed were put forward as context to support argument for an additional addition to this read-in. 2002, Page 5, Lines 4 to 10 2004, Page 124, Line 19 to Page 125, Line 10 2004, Page 267, Lines 7 to 18 2004, Page 270, Lines 3 to 14 2004, Page 298, Line 22 to Page 229, Line 1

2009, Page 7, Lines 1-8 2009, Page 10, Lines 10 to 13 2009, Page 10, Line 14 to Page 11, Line 4 [ 28 ] The other request for addition to the read-in comes from the examination for discovery from 2004, Page 283, Line 22 to Page 284, Line 17. [ 29 ] A primary objection to the addition is that it occurred in 2004 while the original read-in came from 2001.

The repeated reference to the same or a closely related topic in the read-ins suggested for additional context pertain to the same general context and therefore remove the concern that the proposed addition is some three years after the original evidence on the general topic. [ 30 ] The read-in and others added for context pertain to Mr. Mastroprimiano’s reasons for the use of a shell company to advance purchase agreements for land followed by the planned transfer of that land to a different entity for development.

The requested addition to the read-in pertains to the flow of profits from the development entity to B & R Developments. The same evidence was given by the plaintiff at trial. In my view, the proposed addition fails to pass the ‘so closely connected’ test. The proposed addition would act to bolster the plaintiffs’ case in relation to the flow of profits. Therefore, it is not a proper addition to the read-in. The proposed addition to the read-in is not allowed. [ 31 ] Although there is trial evidence of a change of stance by Mr.

Mastroprimiano around 2000 regarding the use of joint ventures generally and specifically in relation to this project at a late date, in my view, it cannot be said that the trial evidence is inconsistent with the read-in. It also cannot be said that the read-in and those put forth for context are the same and therefore should be excluded on the prior consistent statement rules.

While each is worded differently, it is noted that the defence does not seek to have the read-ins entered to attack credibility. [ 32 ] Therefore, the read-in, the contiguous addition, and those referred to for context are admissible. 5. 2004, Page 267, Lines 7 to 18 [ 33 ] In this read-in Mr. Mastroprimiano admitted that he would incorporate a project corporation on almost every project. Some evidence was heard on this issue at trial but his trial evidence was more nuanced, although not inconsistent. The read-in is admissible. 6. 2007, Page 485, Lines 1 to 11 [ 34 ] In this read-in Mr.

Mastroprimiano admits he built the Bonavista project next to some lower-end condominiums. This was not put to Mr. Mastroprimiano. However Mr. Mastroprimiano gave no evidence to the contrary for the time period after 2002. The read-in is admissible. 7. 2007, Page 486, Line 19 to Page 487, Line 2 [ 35 ] In this read-in Mr. Mastroprimiano admits there are numerous condominium projects in the vicinity of Californian Manor II Terra Losa. This question was not put to Mr. Mastroprimiano. However, he gave no evidence to the contrary. Therefore the read-in is admissible. 8. 2007, Page 498, Lines 4 to 10

[ 36 ] In this read-in Mr. Mastroprimiano admits that smells from the restaurant adjacent to the Trail South property would not be considered a positive thing. This question was not put to Mr. Mastroprimiano. However, he gave no contrary evidence. The read-in is admissible. 9. 2009, Page 10, Line 14 to Page 11, Line 4 [ 37 ] In this read-in Mr. Mastroprimiano admitted that he used a shell company to write purchase agreements for land to gain limited liability and anonymity. Similar questions were put to Mr. Mastroprimiano at discovery and at trial. None were worded exactly the same.

All had the same thrust. [ 38 ] The defendant does not seek to enter any read-in to attack credibility. It cannot be said that Mr. Mastroprimiano’s answers given on numerous occasions, including at trial, are inconsistent. Nor can it be said that this read-in is a prior consistent statement. [ 39 ] The admission in the present read-in adds to and gives context to Mr. Mastroprimiano’s answers on this issue. Therefore, the read-in is admissible. 10. 2009, Page 16, Line 9 to 17 [ 40 ] In this read-in Mr.

Mastroprimiano admits the February 9, 2000 letter from Ray Jacobson states it was written on behalf of 410675 and Abbey Lane. Another

interpretation of the read-in is that Ray Jacobson wrote the letter on behalf of 410675 and Abbey Lane. [ 41 ] The issue was put to Mr. Mastroprimiano at trial but the read-in was not put to him. His trial evidence was that Mr. Jacobson wanted to send the letter to protect his commissions. Mr. Mastroprimiano did not instruct Mr. Jacobson to send the letter but he did allow the letter to go as written. [ 42 ] If the read-in takes the second meaning, that Mr.

Mastroprimiano admitted the letter was sent on behalf of the plaintiffs, then it ought to have been put to him during his cross examination where he gave a more textured answer on the issue. Because it was not put to Mr. Mastroprimiano it is not admissible. [ 43 ] Further, the read-in is not admissible to prove the first meaning (what the letter says) since the letter speaks for itself and since the read-in arises from his attention being drawn to the very words in the letter suggesting his answer. Further, the question asked is framed from the point of view of Mr. Jacobson, not Mr.

Mastroprimiano. 11. 2000, Page 30, Line 21 to Page 31 Line 13 [ 44 ] In this read-in Mr. Mastroprimiano admits that no one other than himself was involved in discussions on behalf of 410675 and that between March 15 th and April 17 th he had no discussions with Mr. Little, Mr. Kolbuc or Mr. Bereznicki but that he left discussions up to his lawyer. Mr. Mastroprimiano’s trial evidence was that he could not recall. [ 45 ] Part of the purpose of questioning closer in time to an event is to gain admissions to preserve evidence which will be forgotten over the course of time. Mr.

Mastroprimiano’s trial evidence is not inconsistent with his evidence from discovery. He was unable to recall the details of certain communications. It is not possible to contradict an inability to recall. Therefore the read-in did not need to be put to him. The read-in is admissible. 12. 2002, Page 152, Line 12 to Page 153 Line 13

[ 46 ] In this read-in Mr. Mastroprimiano undertook to determine which letter was to be disregarded on February 9 th correspondence. The answer to the undertaking through Mr. Mastroprimiano was from Mr. Jacobson who determined that on February 9 th , as a result of conversations with Mr. Mastroprimiano, he wrote the words “Please disregard earlier letter” on a letter faxed to Mr. Lupul about an hour after a first fax of a similar letter on the same date, February 9 th . [ 47 ] The plaintiffs maintain the admission was not put to either Mr. Jacobson or Mr. Mastroprimiano.

They do not suggest there is evidence to the contrary. The defendant’s argument appears to be in relation to the January 20 th exchange. [ 48 ] At trial Mr. Mastroprimiano testified that it was possible he discussed the February 9 th correspondence with Mr. Jacobson and then he indicated he could not recall; he was away at the time. [ 49 ] Mr. Mastroprimiano’s trial evidence does not differ from the read-in. At trial Mr. Mastroprimiano either allowed for the telephone contact set out in the read-in or could not recall it. The read-in is admissible. 13. 2002, Page 15, Lines 9 to 21 [ 50 ] In this read-in Mr.

Mastroprimiano admits that he was doing about one project a year up to then but was then looking at doing two per year. At trial, Mr. Mastroprimiano’s evidence was consistent in the sense that over the course of a certain number of years before 2002 he would have the about same number of projects as years on the go. His evidence regarding how projects overlapped was general as to date and is not necessarily inconsistent with the substance of the read-in. [ 51 ] In my view, the read-in is generally consistent with the evidence at trial, although the trial evidence refines it.

Therefore, it is admissible. 14. 2002, Page 77, Line 18 to Page 78, Line 15 [ 52 ] In this read-in Mr. Mastroprimiano admitted that he did not mind to do the subdivision process on the Trail South deal because it gave some control over the process. His evidence at trial was that he agreed to do this work because Trail South requested it, it was necessary for the deal to proceed, and he had no choice. In my view, the two answers are inconsistent. The proposed read-in ought to have been put to Mr. Mastroprimiano. The read-in is not admissible. 15. 2004, Page 208 Lines 5 to 24 [ 53 ] In this read-in Mr.

Mastroprimiano admitted that the proposed project for the Trail South lands was very typical of what he had done elsewhere, both before and after 2000. This read-in distinguishes the One River Park project from other product lines built by Abbey Lane. At trial Mr. Mastroprimiano’s evidence was that he built different kinds of product lines depending on the land purchased.

He repeatedly distinguished the California line from others. [ 54 ] Evidence at trial establishes that One River Park is an outstanding project which is quite different from any other projects completed by the plaintiffs and which is a remarkable project for the City of Edmonton. Nevertheless, with the plethora of trial evidence on the general issue of the kind of products developed by the plaintiffs which differed from One River Park and were otherwise distinguishable from the California line, my view is that the read-in ought to have been put to Mr. Mastroprimiano. The read-in is not admissible.

16. 2006, Page 337, Line 20 to Page 338, Line 7 [ 55 ] In this read-in Mr. Mastroprimiano admits to receiving in August of 1999 a list of properties from Mr. Jacobson. The document was not shown to Mr. Mastroprimiano at trial but the defendant argued it was agreed exhibit 1 tab 11. Exhibit 1 tab 11 is not a list of properties. However, there is no other evidence on this issue. The read-in is admissible. 17. 2006, Page 349, Line 5 to Page 350, Line 3 [ 56 ] In this read-in Mr.

Mastroprimiano admits that 109 Ave and 124 St is a poor area with a higher crime area and that major traffic near to an apartment is a real drawback. There was no evidence at trial on traffic immediately adjacent to a project on 124 th Street. The read-in is admissible. 18. 2007, Page 457, Line 26 to Page 458, Line 15 [ 57 ] This read-in admits to the percentages of ownership of joint venture partners in One River Park. This read-in adds to and is not inconsistent with Mr. Mastroprimiano’s trial evidence on his interest.

Therefore, it is admissible. 19. 2007, Page 477, Line 16 to Page 478, Line 5 [ 58 ] In this read-in Mr. Mastroprimiano admits he did not attempt to buy 16703`-100th Ave because it was in a poor neighbourhood on an extremely busy street, albeit in an established neighbourhood. There was no trial evidence on this point. Therefore the read-in is admissible. 20. 2007, Page 485, Lines 1 to 11 [ 59 ] See No. 6 above. 21. 2007, Page 486, Line 19 to Page 487, Line 2 [ 60 ] See No. 7 above. [ 61 ] The defendant responded to a read-in from 2007, Page 474, Line 23 to Page 475, Line 11.

The plaintiffs did not object to that read-in so it has not been dealt with herein. [ 62 ] The Clerk is directed to remove from exhibit 27, the read-ins which have been determined to be not admissible (numbers 10, 14 and 15 above), to add to exhibit 27 the agreed addition to read-in 4 (2001, Page 6, Line 18 to Page 7, Line 8). [ 63 ] Further, the Clerk shall add to the read-ins removed from exhibit 27 the requested addition to read-in 4 (2004 Page 283, Line 22 to Page 284, Line 17) which was disallowed.

The read-ins removed from exhibit 27 and the disallowed addition to read-in 4 shall be collectively marked as exhibit J1. J1 is not evidence in this trial. [ 64 ] Counsel are free to contact the court to address concerns relating to rebuttal evidence.

Heard on the 31 st day of January, 2011. Dated at the City of Edmonton, Alberta this 9 th day of March, 2011. L.J. Smith J.C.Q.B.A. Appearances: D. T. Parkatti and D. Pentelechuk for the Plaintiffs 410675 Alberta Ltd. and B & R Development Corporation Ltd. W. J. Kenny and S. J. Hammel for the Defendant Trail South Developments Inc.