Newfoundland Processing Ltd. v. South Angela ( The )
T-457-88 / T-584-90 / T-620-90
Rouleau J.
25/10/95
7 pp.
Application for order pursuant to R. 494(10.2) allowing defendants to read in part of discovery evidence of own witness conducted by plaintiff-R. 494(10.2) permitting use of examination for discovery as evidence at trial of action as if person examined testifying as witness because person's attendance cannot be obtained, compelled-Numerous attempts to contact witness unsuccessful-Evidence important, pertinent-Application dismissed-General principles: party not permitted to read into evidence examination of opponent who has died or that of third person not party to action; party who examines for discovery has absolute assurance cannot be used against him unless seeks to make use of it-Often conducting fishing expedition-Answers not subjected to cross-examination-To allow party to read in own witness' discovery without it having been referred to by examining party amounting to self-serving evidence that could, depending on circumstances, be erroneous or false-Could be deviating from hearsay rule, other basic principles of rules of evidence-Would impede Court's opportunity to assess demeanour or credibility of witness-Opposing party would be denied cross-examination, would be unable to challenge testimony of someone providing particularly crucial evidence in civil action-Purpose and scope of crossexamination defined in R. v. Anderson, [1938] 3 D.L.R. 317 (Man. C.A.)-Discovery evidence not only evidence available on issue-Federal Court Rules, C.R.C., c. 663, R. 494(10.2) (as enacted by SOR/90-846, s. 21).