Parks v McAvoy, 2023 ABKB 582

Court of King’s Bench of Alberta Citation: Parks v McAvoy, 2023 ABKB 582 Date: 20231016 Docket: 1901 09232 Registry: Calgary Between: Larry Parks Plaintiff - and - Steve McAvoy Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] I am the Case Management Justice in this matter; an action brought by a homeowner for damages arising from the allegedly defective construction of his home.

Steve McAvoy is the principal of the Defendant, Woodparke Homes Ltd, which was the general contractor. Although the Action involves a number of other parties, this endorsement deals with an issue that has arisen involving only Messrs. Park and McAvoy, whom I will call the Plaintiff and Defendant for the purposes of this endorsement. [ 2 ] By agreement, the Plaintiff is going to take the de bene esse evidence of the Defendant, who has been diagnosed with a potentially terminal illness. With trial not scheduled until the fall of 2024, at the earliest, it was agreed that this should happen. Counsel have worked out a

schedule that would see the de bene esse evidence of the Defendant taken before the end of this year.

[ 3 ] However, the parties disagree on two ancillary issues; how to handle objections that may arise during the de bene esse questioning and whether the taking of his de bene esse evidence now obviates the Defendant testifying at trial, should he be able to do so. Objections [ 4 ] Counsel for the Plaintiff has proposed that, in the event that any of his questions are objected to, the Defendant would be obligated to answer the question anyway and the validity or propriety of the question - and thus the admissibility of the answer - would be determined by the trial judge.

Counsel for the Defendant objects to this and wants the ability to have objections ruled on by myself prior to the Defendant being compelled to answer a question to which an objection has been made. [ 5 ] Plaintiff’s counsel argues that the Defendant’s precarious health makes it impractical to await decisions on objections, particularly because, as he says, the proceedings have been marked by many objections made by Defendant’s counsel at prior examinations.

He says there is no prejudice to the Defendant as the trial judge can simply refuse to admit the evidence at trial if he or she agrees with the objection. [ 6 ] Defendant’s counsel says that if a line of questioning is allowed to proceed and later determined to be objectionable, there will be wastage of time and unnecessary legal fees.

They take issue with the Plaintiff’s characterization of their conduct of the file. [ 7 ] I do not necessarily accept that the Defendant can make or is making a valid distinction between one objectionable question (which they say they would answer with a reservation of the objection to a later time) versus a line of objectionable questioning. All lines of questioning begin with one question and counsel generally err on the side of caution when objecting. [ 8 ] However, I do agree that ruling on objections should not be reserved to trial.

It is part of my duty, as Case Management Justice, to assist the parties in preparing for trial. I do not wish to deliver the trial judge an action full of unresolved procedural matters. Further, the parties themselves will have extra work to do if they are preparing for a trial without knowing whether particular evidence will be available to them or to their opponents. [ 9 ] It is preferable to have these matters dealt with as expeditiously as possible for a number of reasons, including Mr. McAvoy’s health.

I am setting aside the morning of Monday, December 4, 2023 between 9:00 am and 1:00 pm for the purpose of deciding any contested objections that arise from the de bene esse examinations currently scheduled for November and December, 2023. [ 10 ] Mr. Breitman will prepare a list of any objections made that he disagrees with and attach those to a Notice of Application returnable that day, along with the relevant transcripts or portions thereof. Counsel can make their oral submissions but no Briefs or Affidavits will be required.

If transcripts of all the material days are not available, I can also offer the parties Friday, December 15 at 1:00 pm , by which time transcripts should be available. Use of the Evidence at Trial [ 11 ] First, I apologize to Mr. McAvoy and his counsel for the frank discussion here about his health, which I appreciate would normally be a very private matter. [ 12 ] It is obviously agreed that, should Mr. McAvoy pass before the trial commences, his de bene esse evidence would be used at trial.

However, if he is alive at the time of trial, counsel for the Plaintiff says that the trial judge should have complete discretion to determine whether Mr. McAvoy should testify in person and further, whether and how his de bene esse evidence should be used at trial. [ 13 ] Counsel for the Mr. McAvoy says this leaves open the possibility of significant duplication of time and resources by duplicating his testimony and so, we should proceed on the assumption that he will not testify at trial, even if physically able to do so.

Further, the purpose of de bene esse evidence, it is argued, is not to allow “two kicks at the can” by having both the viva voce and de bene esse evidence of a witness made available at trial. [ 14 ] On this issue, I agree with the Plaintiff. Viva voce testimony of any witness is generally preferred where available. I am obviously not in a position to determine at this point whether Mr. McAvoy can or should testify in person a year from now. The trial judge may very well decide to defer to Mr.

McAvoy’s physicians or lawyers on that question but, in any event, that should be addressed as the parties get close to their trial dates. [ 15 ] As to whether or not the de bene esse evidence could be used for impeaching Mr. McAvoy’s trial testimony or for some other purpose at trial, that is clearly the purview of the trial judge. Conclusion [ 16 ] For the sake of clarity of what has become a significant record, I ask that Mr. Breitman prepare a form of Order and circulate it to opposing counsel prior to forwarding to my office. Heard on the 28 th day of September, 2023.

Dated at the City of Calgary, Alberta this 16 th day of October, 2023.

M.H. Hollins J.C.K.B.A. Appearances: Ariel Z. Breitman for the Plaintiff, Larry Parks Erin Crosley for the Defendant, Steve McAvoy