Canmore Mountain Villas Inc. v. Alberta (Minister of Seniors and Community Supports) et al., (2010) 495 A.R. 323 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 13, 2010
• Citations: (2010), 495 A.R. 323 (QB);2010 ABQB 489

Canmore Mountain Villas Inc. v. Alta. (2010), 495 A.R. 323 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AU.069

Canmore Mountain Villas Inc. (applicant) v. Her Majesty in Right of the Province of Alberta, as Represented by the Minister of Seniors and Community Supports, Bert Dyck, Ron Casey, Yvonne Fritz and the Town of Canmore (respondents)

(0603 05686; 2010 ABQB 489)

Indexed As: Canmore Mountain Villas Inc. v. Alberta (Minister of Seniors and Community Supports) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

August 13, 2010.

Summary:

The plaintiff claimed damages for the failure of the province and the town to finalize an arrangement under which certain land, owned by the province and located in the town, would be sold by the town to the plaintiff at a non-market price on the condition that the plaintiff provided affordable housing in the town. Relying on rule 261(2) and the principled exception to the hearsay rule, the plaintiff asked the court to admit two documents into evidence at trial as evidence for the truth of their content: the affidavit of the town's former mayor, who had since died, and the transcript of the cross-examination on the affidavit.

The Alberta Court of Queen's Bench granted the motion.

Editor's Note: For a decision related to this action, see 484 A.R. 34.

Evidence - Topic 1526

Hearsay rule - Hearsay rule exceptions and exclusions - General - Testimony given in previous proceedings - [See Evidence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The plaintiff claimed damages for the failure of the province and the town to finalize an arrangement under which certain land, owned by the province and located in the town, would be sold by the town to the plaintiff at a non-market price on the condition that the plaintiff provided affordable housing in the town - Relying on rule 261(2) and the principled exception to the hearsay rule, the plaintiff asked the court to admit two documents into evidence at trial as evidence for the truth of their content: the affidavit of the town's former mayor, who had since died, and the transcript of the cross-examination on the affidavit - The Alberta Court of Queen's Bench granted the motion - The evidence was both necessary and reliable - The criterion of necessity was met by the mayor's death - The criterion of reliability was met by the fact that the evidence was not only sworn, but was also cross-examined on (in the context of an application for summary dismissal) - The defendants' concern regarding the inadmissibility of some of the evidence (e.g., opinion evidence about the meaning of a contract) could be raised either in a pretrial motion or at trial in an objection to specific aspects of the documents - The only issues to be addressed on this application were the hearsay character of the evidence and the factors of necessity and reliability in that context - See paragraphs 25 to 47.

Evidence - Topic 1633

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - Affidavits - [See Evidence - Topic 1527 ].

Practice - Topic 3679

Evidence - Affidavits - Use of - Affidavits - Evidence - Admissibility - [See Evidence - Topic 1527 ].

Practice - Topic 3685

Evidence - Affidavits - Use of - At trial - [See Evidence - Topic 1527 ].

Cases Noticed:

Brennenstuhl Estate v. Trynchy et al. (2007), 441 A.R. 312; 2007 ABQB 647, refd to. [para. 9].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 9].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 9].

R. v. Butler (K.) (2009), 472 A.R. 174; 2009 ABQB 97, refd to. [para. 9].

R. v. G.N.D. (1993), 62 O.A.C. 122; 81 C.C.C.(3d) 65 (C.A.), leave to appeal denied (1993), 158 N.R. 319; 65 O.A.C. 79; 82 C.C.C.(3d) vi (S.C.C.), refd to. [para. 9].

Pierre v. Lil'Wat Nation - see Pierre v. Mount Currie Indian Band et al.

Pierre v. Mount Currie Indian Band et al. (1999), 20 B.C.T.C. 139; 61 B.C.L.R.(3d) 381 (S.C.), refd to. [para. 9].

Heritage Freehold Specialists & Co. v. Montreal Trust Co. et al. (1997), 208 A.R. 241 (Q.B.), refd to. [para. 9].

Paquin v. Gainers Inc. (1989), 101 A.R. 290 (C.A.), refd to. [para. 9].

Phillip v. Whitecourt General Hospital et al. (2003), 337 A.R. 39; 2003 ABQB 247, refd to. [para. 9].

R. v. Streu, [1989] 1 S.C.R. 1521; 96 N.R. 58; 97 A.R. 356, refd to. [para. 9].

Khan v. College of Physicians and Surgeons (Ont.) et al. (1992), 57 O.A.C. 115; 9 O.R.(3d) 641 (C.A.), refd to. [para. 9].

Malik v. State Petroleum Corp. et al., [2007] B.C.T.C. Uned. D61; 2007 BCSC 934, refd to. [para. 9].

Alta-West Group Investments Ltd. v. Femco Financial Corp. and Femco Ventures Ltd. (1984), 57 A.R. 33; 1984 CarswellAlta 137; 34 Alta. L.R.(2d) 5 (Q.B.), refd to. [para. 9].

Wild Rose Properties Ltd. v. Latam (1985), 59 A.R. 95; 1985 CarswellAlta 469 (C.A.), refd to. [para. 9].

Reardon Smith Line Ltd. v. Hansen-Tangen, [1976] 1 W.L.R. 989; [1976] 3 All E.R. 570 (H.L.), refd to. [para. 9].

R. v. Cansanay (J.H.) (2009), 240 Man.R.(2d) 88; 456 W.A.C. 88; 2009 MBCA 59, refd to. [para. 10].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201; 1998 CarswellNat 1062, refd to. [para. 10].

921250 Alberta Ltd. v. 762910 Alberta Inc. (2003), 334 A.R. 363; 7 R.P.R.(4th) 209; 2003 CarswellAlta 197; 2003 ABQB 81, refd to. [para. 10].

First Edmonton Place Ltd. v. Qualico Developments Ltd. and 218089 Alberta Ltd. (1989), 97 A.R. 91; 1989 CarswellAlta 430 (Q.B. Master), refd to. [para. 10].

Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. et al. (2010), 477 A.R. 112; 483 W.A.C. 112; 2010 ABCA 126, refd to. [para. 11].

Whebby (W. Eric) Ltd. v. Boehner (Doug) Trucking & Excavating Ltd. - see Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al.

Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al. (2007), 258 N.S.R.(2d) 41; 824 A.P.R. 41; 2007 NSCA 92, refd to. [para. 12].

Wood v. Wood, [1931] S.J. No. 7, refd to. [para. 12].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 13].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence In Canada (2nd Ed. 1999), p. 523 [para. 10].

Stewart, Hamish, Evidence: A Canadian Casebook (2nd Ed. 2006), p. 271 [para. 10].

Counsel:

Carmen L. Plante (Bishop & McKenzie LLP), for Canmore Mountain Villas Inc.;

Dennis K. Yasui (Brownlee LLP), for the Town of Canmore, Bert Dyck and Ron Casey;

Jeff Mayan and Lisa Friesenhan (Alberta Justice, Civil Law Branch), for Her Majesty in Right of the Province of Alberta, as represented by Minister of Seniors and Community, and Yvonne Fritz.

This motion was heard on July 20, 21, 23 and 26, 2010, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on August 13, 2010.