Associate Capital Services Corp. v. Multi Geophysical Services Inc. and Kondrat, (1986) 73 A.R. 364 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 24, 1986
• Citations: (1986), 73 A.R. 364 (QB)

Assoc. Capital v. Multi Geophysical (1986), 73 A.R. 364 (QB)

MLB headnote and full text

Associate Capital Services Corp. v. Multi Geophysical Services Inc. and Kondrat

(Action No. 8301-00222)

Indexed As: Associate Capital Services Corp. v. Multi Geophysical Services Inc. and Kondrat

Alberta Court of Queen's Bench

Hutchinson, J.

March 24, 1986.

Summary:

After a plaintiff and defendant closed their cases, it became apparent that the law of Colorado was likely the proper law to be applied to resolve their dispute. The plaintiff applied for leave to offer new evidence in the form of an affidavit proving the law of Colorado.

The Alberta Court of Queen's Bench granted leave to offer the evidence.

Practice - Topic 3555

Evidence - Leave to offer further evidence after case closed - The plaintiff and defendant closed their cases in an action concerning the validity of a guarantee - It was apparent that the law of Colorado was likely the proper law to be applied - The plaintiff negligently failed to produce this evidence at trial and elected to proceed without seeking an adjournment and without seeking permission to prove the Colorado law at a later time - The Alberta Court of Appeal granted the plaintiff leave to offer further evidence in the form of an affidavit proving the law of Colorado - The court held that leave was appropriate where a miscarriage of justice might occur if the evidence was not considered, the issue was dealt with peripherally at trial, so the defendant would not be surprised, and the evidence was likely incontrovertible.

Cases Noticed:

Kay v. Wirstiuk, [1978] 1 W.W.R. 317; 8 A.R. 405, appld. [para. 5].

Statutes Noticed:

Guarantees Acknowledgment Act, R.S.A. 1980, c. G-12.

Counsel:

D.P. Macguire, for the plaintiff;

H.R. Vickers, for the defendants.

This application was heard before Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 24, 1986.