Allen Estate v. Interlake Aviation Co. et al., (1997) 124 Man.R.(2d) 84 (QBM)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 28, 1997
• Jurisdiction: Manitoba
• Citations: (1997), 124 Man.R.(2d) 84 (QBM)

Allen Est. v. Interlake Aviation (1997), 124 Man.R.(2d) 84 (QBM)

MLB headnote and full text

Temp. Cite: [1997] Man.R.(2d) TBEd. DE.048

Kallie Joan Allen as Executrix for the Estate of Howard Robert Allen, deceased (plaintiff) v. Interlake Aviation Co. Ltd., Textron Canada Ltd. and Attorney General of Canada (defendants) and The British Aviation Insurance Group (Canada) Ltd. (added party)

(Suit No. CI-89-01-40759)

Kari Aamodt as representative for the Estate of Leif Hoegh-Larsen, deceased (plaintiff) v. Interlake Aviation Co. Ltd., Textron Canada Limited and Kallie Joan Allen as Executrix for the Estate of Howard Robert Allen and Attorney General of Canada (defendants) and The British Aviation Insurance Group (Canada) Ltd. (added party)

(Suit No. CI-89-01-40760)

Indexed As: Allen Estate v. Interlake Aviation Co. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Sharp, Master

October 28, 1997.

Summary:

A pilot and passenger were killed in a helicopter crash. Their estates sued the de­fendant Attorney General of Canada and others, alleging negligence. The defendant Attorney General sought to strike out all or most of an affidavit filed by the plaintiff in opposition to a motion brought by the defen­dant for summary judgment.

A Master of the Manitoba Court of Queen's Bench dismissed the motion to strike the affidavit.

Evidence - Topic 7017

Opinion evidence - Expert evidence - General - Affidavits - A pilot and passen­ger were killed in a helicopter crash - Their estates sued the defendant Attor­ney General of Canada and others, alleging negligence - The defendant Attorney Gen­eral sought to strike out all or most of an affidavit filed by the plaintiff in opposition to a motion brought by the defendant for summary judgment - The affidavit con­tained expert evidence - The defendant contended, inter alia, that an expert could only testify after being qualified as an expert - A Master of the Manitoba Court of Queen's Bench dismissed the motion to strike the affidavit - The question of the deponent's expertise and the acceptability of his evidence could only be determined by the adjudicator on the motion for sum­mary judgment - See paragraphs 8 to 20 and 25.

Evidence - Topic 7017

Opinion evidence - Expert evidence - General - Affidavits - A pilot and pas­sen­ger were killed in a helicopter crash - Their estates sued the defendant Attorney General of Canada and others, alleging negligence - The defendant Attorney Gen­eral sought to strike out all or most of an affidavit filed by the plaintiff in opposition to a motion brought by the defendant for summary judgment - The affidavit con­tained expert evidence - The defendant contended, inter alia, that the affidavit contained statements of the deponent's information and belief with respect to facts that were contentious - A Master of the Manitoba Court of Queen's Bench dis­m­issed the motion to strike the affidavit - The court stated that in the case of an expert, the extrajudicial statement or con­duct the expert may refer to were not being tendered as proof of the facts con­tained therein, but only as the basis of the expert opinion given - See paragraphs 8 to 15.

Evidence - Topic 7017

Opinion evidence - Expert evidence - General - Affidavits - A pilot and pas­sen­ger were killed in a helicopter crash - Their estates sued the defendant Attorney General of Canada and others, alleging negligence - The defendant Attorney Gen­eral sought to strike out all or most of an affidavit filed by the plaintiff in opposition to a motion brought by the defendant for summary judgment - The affidavit con­tained expert evidence - The defendant contended, inter alia, that as the deponent failed to draw a link between the accident and the defendant, the affidavit was irrel­evant - A Master of the Manitoba Court of Queen's Bench dismissed the motion to strike the affidavit - The Master accepted the plaintiff's argument that the courts in recent years had applied a less stringent test respecting the issue of causation - See paragraphs 21 to 24.

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See second Evidence - Topic 7017 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant - [See third Evidence - Topic 7017 ].

Practice - Topic 5710

Judgments and orders - Summary judg­ments - Evidence - [See all Evidence - Topic 7017 ].

Cases Noticed:

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 138 D.L.R.(3d) 202; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 29 C.R.(3d) 193; 68 C.C.C.(2d) 394, refd to. [para. 17].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1996), 112 Man.R.(2d) 174 (Q.B.), refd to. [para. 18].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 114 D.L.R.(4th) 419; 29 C.R.(4th) 243, refd to. [para. 18].

Swanson and Peever v. Canada, [1992] 1 F.C. 408; 124 N.R. 218 (F.C.A.), refd to. [para. 23].

Authors and Works Noticed:

Linden, A.M., Canadian Tort Law (5th Ed. 1993), p. 604 [para. 22].

Sopinka and Lederman, The Law of Evi­dence in Civil Cases (1974), pp. 45 [para. 14]; 308 [para. 9]; 309 [para. 16]; 313 [para. 9].

Counsel:

Gordon W. Katelnikoff, for the plaintiffs Allen and Aamodt;

Harry Glinter and Tracey Harwood-Jones, for the defendant, the Attorney General of Canada;

Campbell G. Wright and Connie Tuharsky, for the British Aviation Insurance Group (Canada) Ltd.

This motion was heard before Sharp, Master, of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on October 28, 1997.