Court Decides What Evidence to Admit Pursuant to Rule 289
Weatherford Canada Ltd., Weatherford Canada Partnership, Edward Grenke and Grenco Industries Ltd. v. Corlac Inc., National-Oilwell Canada Ltd. and National Oilwell Incorporated 2009 FC 449 (Phelan, J.)

May 4, 2009

Robert MacFarlane, Adam Bobker and Joshua Spicer for the Plaintiffs, Weatherford Canada Ltd. and Weatherford Canada Partnership
Bruce Stratton and Vincent Man for the Plaintiffs, Edward Grenke and Grenco Industries Ltd.
Ridout & Maybee LLP for the Defendants, Corlac Inc., National-Oilwell Canada Ltd. and National Oilwell Incorporated

The Defendants Corlac Inc., National-Oilwell Canada Ltd. and National Oilwell Incorporated brought a motion under Rule 289 of the Federal Court Rules to require the Plaintiffs to supplement evidence they had read-in from Examination for Discovery transcripts with additional discovery evidence in the form of answers of the Defendants’ witnesses.

The Court commented that the principle underlying Rule 289 was to ensure that the answers to questions read-in from Examination for Discovery transcripts fairly reflect the true response given. The approach to determining whether to admit evidence pursuant to Rule 289 was to determine whether the additional material showed either that the witness did not understand the particular question or that the portion that was being read in was misleading in the sense of suggesting that the witness, at that point, was saying one thing when in fact he/she was saying another.

The Court granted the Defendants’ motion in part. One specific witness answer that the Court ordered be read-in pursuant to Rule 289 was an answer necessary to give the source of a document at issue and to give meaning to the identification of the document. Specific witness answers that the Court did not allow to be read-in pursuant to Rule 289 included an answer that went well beyond the notion of ensuring that the witness’ response was an accurate reflection of the true answer to a specific question; an answer from another witness to explain a first witness’ answer; answers to questions that were completely separate from the Plaintiffs’ read-ins; an answer to an undertaking that would have resulted in the Plaintiff being denied the ability to cross-examine on an answer on which it had no intention to rely; answers containing evidence that could better be introduced viva voce; and an answer about facts relied on to support a pleading, which was not evidence of those facts.

By: Roch Ripley, Gowling Lafleur Henderson LLP