Diotte v 2 Cuz'N Trucking Ltd, 2022 ABKB 741

Court of King’s Bench of Alberta Citation: Diotte v 2 Cuz'N Trucking Ltd, 2022 ABKB 741 Date: 20221108 Docket: 1703 10300 Registry: Edmonton Between: Pierre Marc Diotte Plaintiff - and - 2 Cuz'N Trucking Ltd, Israel Savoie and XYZ Corporation Defendants _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is a morning chambers r 4.33 application to strike for delay.

The respondent/plaintiff says that the application cannot succeed because the supporting affidavit is based entirely on hearsay. This is a common issue in what is probably the second most popular final application after

summary judgment. [ 2 ] Rule 13.18(3), which is the successor to old r 305 [1] provides: 13.18(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. [ 3 ] A r 4.33 application is a ‘final application’ in that it may dispose of all or part of a claim. An interlocutory application deals with issues along the way and is not determinative of the issues in the lawsuit.

A high standard of evidence is required for a final application. [ 4 ] In Alberta Law Reform Institute, Consultative Memorandum 12.10, ‘Motions and Orders’, pg 27, para 84 we find: … In matters where final relief is sought, trial standards for reliable evidence should be used because they provide a better process and more assurance that the final decision will be properly established and just. [ 5 ] In Murphy v Cahill , 2012 ABQB 793 Veit J says, at para 29:

[29] … It is possible, of course, that the drafters felt constrained by the difficulty of explaining the principled approach to hearsay tounrepresented litigants who must look to the Rules to guide their own actions in the court. Although it is not inconceivable that thedrafters of the new Rules intended to set a higher standard for applications than for trials, I think that, in interpreting the effect of Rule13.18, courts are likely to apply the same standard on applications as they apply in trials, including criminal trials.

Therefore, courts arelikely to interpret Rule 13.18 as saying that where a litigant is applying for relief that may dispose of all or part of a claim, that litigantcan only use in support affidavits containing either statements of fact within the knowledge of the deponent or statements containinghearsay evidence that would be admissible at trial for the truth of the content. [6] The cases that interpret old r 305 are to like effect (see Harco Holdings 2000 Inc v MB, 2010 ABQB 442 per Hanebury M(and the cases cited there, as well as the cases cited by the learned Justice, above). [7] I have reviewed the considerations set out by Wittmann CJ in Attila Dogan Construction v AMEC Americas Limited, 2015ABQB 120 at paras 59-63, citing Murphy v Cahill (above).

In that case the learned Chief Justice finds that a corporate representativecannot rely on hearsay to support an affidavit in a final application but, must instead use reliable corporate records. (You cannot spinevidentiary straw into gold by having a CEO repeat it.) I acknowledge the comments of Graesser J (late of the Rules Committee) inAlberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19, at para 45, where he suggests thatthe ‘new rule’ 13.18(3) may be more stringent than old rule 305(1),(3).

I also acknowledge that L'Heureux-Dubé J suggests, in adifferent context (in her minority concurring decision concerning videotape evidence from children pursuant to s 715.1 of the CriminalCode of Canada), that exceptions to the hearsay rule do not necessarily apply to legislative initiatives: R v L(DO), (SCC), [1993] 4 SCR 419. [8] In its application by the Courts, r 13.18(3) and its predecessor, old r 305, have been treated as a restatement of the bestevidence rule.

I fail to see any point in requiring a higher standard of evidence for a final application in chambers than would beadmissible at trial. [9] I adopt, as an up-to-date statement of the law, the comments by Graesser J, in County of Vulcan v Genesis ReciprocalInsurance Exchange, 2020 ABQB 93. There, in the

summary judgment context, he says: [77] … Presumptively inadmissible hearsay may be admissible under Khelawon [R v Khelawon, 2006 SCC 57], and it may beadmissible for narrative purposes. However, my read of Weir-Jones is that neither party may rely on hearsay evidence on the substantiveissues to be determined on a

summary judgment application, unless the hearsay can be brought within the exceptions described inKhelawon or other recognized exceptions to the hearsay rule. … (emphasis added) Hearsay is presumptively inadmissible, partly because it is impossible to test the reliability of that evidence by cross examination.Hearsay evidence may be admitted to prove the truth of the contents of a statement if receiving it in that form is both necessary andreliable.[2] Hearsay evidence may be received in a final application if it meets those criteria and would otherwise be admissible at trial.

Application to this Case [10] The applicant’s legal assistant swears: 3. Now shown to me an attached to this my affidavit as Exhibit “B” is a copy of the Procedure Card for the current action dated October16, 2018. The following procedural steps have been taken in this Action: a. The Plaintiff filed his Statement of Claim on May 31, 2017. b. The Defendants filed a Statement of Defence and Counterclaim on May 1, 2018. c. The Plaintiff filed a Reply to Statement of Defence and Statement of Defence to Counterclaim on May 8, 2018. [11] The procedure card and the pleadings should not be controversial.

I suppose, that an applicant under r 4.33 could tendercertified copies of the pleadings (or perhaps the procedure card) pursuant to s 33(

a) of the Alberta Evidence Act, RSA 2000, c A-18, toprove the truth of the contents of the date stamp on the pleadings on the court file, but I am willing to accept this evidence as presented.This is more an issue of proportionality than admissibility. [12] The applicant’s legal assistant goes on to say: 4. I am advised by [lawyer] and do verily believe the Plaintiff served his Affidavit of Records on the Defendants on or before September6, 2018, which is when the Affidavit of Service was filed. [13] Affidavits of records, unlike pleadings, are served but not filed.

I do not take issue with receiving the evidence set out aboveeither. It is true that this is something that the client or a party could swear to and properly should swear to, but this would likely have tobe on information and belief as well; as it is doubtful that the client or party could have personal or firsthand knowledge of this. Like thelegal assistant, they would likely have to be informed by counsel, a legal assistant, or at the very least a review of the file. But even then,it would be second hand. [14] The crux of the matter is in the next piece of evidence offered by the legal assistant: 6.

I am advised by [lawyer] and do verily believe that no steps have been taken in this action between the date that the Defendant servedhis Affidavit of Records on the Plaintiff and the date of this Affidavit. [15] Rule 4.33 requires that the action not have advanced significantly in the three years following the last significant advance.

( Rahmani v 959630 Alberta Ltd, 2021 ABCA 110 , para 16 ). Whether something is a significant advance is a mixed question of fact and law. The client should swear to the events in the lawsuit prior to the motion that are not reflected on the court file. Some of this may necessarily be on information and belief as well, given that client may not be privy to every event that has taken place on the file.

The important thing is that the Court has to be able to assess the event, to see whether or not it is significant; such that it may restart the three- year clock. [ 16 ] Applicants in a r 4.33 application will often swear that there has been no stay (r 4.33(2)(a)), no ‘participation’ (r 4.33(2)(b)), and no suspension (r 4.33(5)). While the Court can take notice of an Order directing a stay, or of a litigation plan, this evidence should otherwise be provided by the client. [ 17 ] In my view, r 4.33 should be treated in the same fashion as a

summary judgment application. By that I mean that the applicant under the rule, having established a prima facie case, then causes the burden to shift to the plaintiff/respondent to show that there was a significant advance, or a standstill, participation, or a suspension period that would permit the action to continue. [ 18 ] In this case, the applicant has fallen short of establishing a prima facie case, with personal firsthand evidence, or evidence that would otherwise be receivable at trial.

The crucial part of the evidence stated in paragraph six of the affidavit (above), does not meet the test for admissible hearsay, and it is not necessary to admit this evidence in this form. Accordingly, the application is dismissed. Heard on the 12 th day of October, 2022. Dated at the City of Edmonton, Alberta this 8 th day of November, 2022. W.S. Schlosser A.J.C.K.B.A. Appearances: Céline G. Bégin McCuaig Desrochers LLP for the Defendants Joseph J. Kueber, KC Bryan & Company LLP for the Plaintiff