Matthews v Matthews, 2017 ABQB 130

Court of Queen’s Bench of Alberta Citation: Matthews v Matthews, 2017 ABQB 130 Date:20170223 Docket: 1610 01075 Registry: Red Deer Between: Clifford Matthews Plaintiff - and - Nolan Matthews Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [1] Invoking Rules 6.11(1)(

f) and 6.1(

b) Nolan Matthews applies to waive the implied undertaking attaching to an affidavitsworn by a Mr. Engen in other proceedings so as to allow that affidavit to be used by Nolan Matthews in response to an originatingapplication brought by Clifford Matthews in these proceedings. The application is denied. [2] Case law has long established that the sound reasons which underlie the undertaking that affidavits filed in one lawsuit won’tbe used in another – which reasons were reviewed by the Supreme Court of Canada in Juman v Doucette 2008 SCC 8, should only beover-ridden where certain conditions are met.

The public interest may justify such an over-ride. However, in the context of ordinarylitigation, such as the litigation with which we are dealing in this application, the usual pre-requisites to granting an over-ride weresummarized by Wilson J. in Highland Produce Ltd. v. Canadian Egg Marketing Agency 2004 ABQB 924 as follows: 3 The parties, in argument, both referred to the case of Kroll Associates Inc. v. Calvi 1998 ABQB 164 , [1998] A.J. No. 331,in bringing to the Court's attention the three "rules" said to govern applications such as this. Those rules are set out in that case asfollows: (

a) the party against whom the evidence is offered was present at the examination and had an opportunity to cross-examine the declarantat the examination;

(

b) the issues in the action now before the court are substantially the same as the issues in which the examination took place; and (

c) the proceeding, if civil, is between the same parties or their representatives as in the earlier proceeding. 4 These three points were taken from the case of The Corporation of the Town of Walkerton v. Erdman (1894) 1894 CanLII 9 (SCC) , 23 S.C.R. 352. The judgments in that case note that the principles were to be found in Stephen's Digest Law of Evidence, p. 44 and Taylor on Evidence, p. 464.

The point is also made in the quote from Stephen's that: . . . the evidence is relevant for the purpose of proving the matter stated in subsequent proceedings . . . when the witness is dead, . . . provided that the three rules are met. [ 3 ] The affidavit tendered by Mr.

Matthews does not meet any of those conditions: there has been no opportunity to cross- examine the affiant on his affidavit, the issues that are before the court in the proceeding involving the affiant and Clifford Matthews are different from those which are before the court in the originating application commenced by Clifford Matthews against Nolan Matthews, and the civil proceedings are not between the same parties. [ 4 ] Nolan Matthews argues that he ought to be allowed to use Mr.

Engen’s affidavit in response to his father Clifford’s originating application against him because the court should have the best evidence available. That is precisely the point. There is absolutely nothing in this application which suggests that the court process will be assisted by granting the application; on the contrary, granting the request will undermine the efficiency and efficacy of the process. The analysis of whether the undertaking should be waived must begin with an assessment of the originating application itself.

In it, Nolan Matthews’ father, Clifford Matthews, is asking the court to set aside a 2015 rescission of a trust agreement made between them in 2005. The 2005 trust agreement is in writing and states that Nolan Matthews will not sell the land transferred to him by Clifford Matthews without having first received Clifford Matthews’ written consent. Clifford Matthews alleges that he did not give any written consent to his son allowing Nolan to sell the subject real property to Mr. Engen in 2015; indeed, as I understand it, Nolan Matthews does not dispute that there is no such written consent. It is clear that Mr.

Engen has not provided any evidence, and could not provide any evidence relating to the 2005 agreement. [ 5 ] Clifford Matthews goes on to allege that the oral consent he gave Nolan Matthews to sell the subject real property was made as a result of undue influence by Nolan Matthews: during the course of a meeting at which Clifford Matthews, Nolan Matthews, Nolan Matthews’ wife and Mr. Engen were present. Clifford Matthews alleges that Nolan Matthews pounded his fist on the table and yelled and his father.

Clifford Matthews also alleges that, prior to the said meeting, Nolan Matthews had, on previous occasions, yelled and screamed at his father. Mr. Engen’s affidavit does not deal with the one issue on which he perhaps might have provided useful evidence: whether or not there had been any fist banging or yelling at the meeting in question. Mr. Engen’s affidavit deals with the amount he paid for the property, the appraisal of the property, and the fact that Clifford Matthews orally gave consent to the sale from Nolan Matthews to Mr. Engen. On the basis of Mr.

Engen’s affidavit, there is no reason to suppose that he is in a position to produce trial quality evidence as to what would or could constitute undue influence on Clifford Matthews. [ 6 ] The proceedings in which Mr. Engen swore an affidavit are proceedings in which Clifford Matthews is asking to set aside Mr. Engen’s purchase of Nolan Matthews’ real property on the basis that Mr. Engen did .not pay market price for the property. In his responding affidavit, Mr. Engen states the price he paid for the property and attached an appraisal which indicates that the property was worth exactly what Mr.

Engen paid for it. [ 7 ] It is therefore clear that the two lawsuits involve different parties and different issues and that no one has yet questioned Mr. Engen on his affidavit. [ 8 ] It is no answer for Nolan Matthews to say that he could examine/cross-examine Mr. Engen on his affidavit during the next few days in order to learn if Mr. Engen actually remembers anything pertinent to the one issue raised in the originating application about which he may have some information: examination of Mr. Engen would necessarily involve an adjournment of the hearing currently scheduled for February 24.

It would, of course, be entirely out of the question that Nolan Matthews should use Mr. Engen’s affidavit in its current form since the affidavit says nothing which the parties to this proceeding have already agreed to: there is a rescission agreement. The issue is, primarily, whether the consent to the Nolan/Engen sale must be in writing as required by the trust deed, and, secondarily, whether the oral consent to the sale was obtained through the application of undue pressure by Nolan Matthews on Clifford Matthews.

It is not certain that Nolan Matthews and Clifford Matthews will have both completely dealt with any possible pertinent information available from Mr. Engen and re-submitted their briefs after taking any Engen evidence into account in time to allow the originating application to be heard on March 24, 2017 rather than on February 24, 2017 as currently scheduled.

If the matter could not be heard on March 24, it is entirely likely that, because of pressure on scarce court resources, the hearing could not be further re-scheduled except with a delay of many more months. [ 9 ] This realistic potential for material delay is important for two reasons: First, Nolan Matthews has known that Mr. Engen was present at the meeting in question since the date of the meeting which was held well over one year ago but has not himself made an effort to obtain evidence from Mr. Engen in relation to the originating application.

He has not even provided the 5 days’ notice of his application as required by the Rules. He has therefore not moved reasonably to ensure that the originating application can be dealt with as soon as practicable; and, second, Clifford Matthews is 84 years old, and, according the medical evidence provided by way of affidavit has a life expectancy of less than 12 months.

While the last prognosis may not have been known to Nolan Matthews, he has known, throughout of his father’s severe medical condition. [ 10 ] In the result, Nolan Matthews has not met the relatively onerous test for waiving the implied undertaking in Mr. Engen’s affidavit. [ 11 ] In addition to not complying with the requirements of R. 6.11(1)(f), Nolan Matthews has not qualified for leave under R. 6.1(b). The rules relating to originating applications are different from the rules under

Part 6 of the Rules of Court because proceeding by

way of originating application – where such a

summary procedure is authorized - is the functional equivalent of a trial; hence, the Rule requiring that any affidavit evidence tendered on such an application is restricted to evidence that could be given at trial. In its present form, Mr. Engen’s evidence is essentially not relevant to an issue in the originating application because the existence of an oral rescission not a contested issue in the originating application. [ 12 ] It is for the above reasons that Nolan Matthews’ application is denied. [ 13 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision.

Heard on the 22 nd day of February, 2017. Dated at the City of Red Deer, Alberta this 23 rd day of February, 2017. J.B. Veit J.C.Q.B.A. Appearances: Shawn Hagen, Jackie Handerek & Forester for the applicant, Nolan Matthews Kelsey Lavery, Warren Sinclair LLP for the respondent, Clifford Matthews