Death May Not End a Dispute

In Hogue v Johnston (Estate), 2021 ABQB 913, Cathy Hogue was suing her former husband, Earl Johnston, for unequal distribution of family property after their divorce. Earl, in turn, was suing Cathy for embezzlement (and other wrongs associated with civil fraud) from his numbered company, to which they had both contributed. The trial day was fast approaching, but the parties ran into one small problem: Earl died.

This put the Court into a difficult situation. The parties had poor evidence in the family property dispute. The civil fraud action was partially reliant on records which were purposefully falsified with both parties’ consent. Both actions were heavily reliant on the testimony of the parties themselves, and suddenly, one party had just lost much of its evidence.

The Court had no choice but to rely on rule 8.14 of the Alberta Rules of Court. The rule considers, inter alia, precisely the circumstance of a witness dying. It allows the otherwise admissible evidence given by the witness at Part 5 questioning to be read into evidence at trial with the Court’s permission. The evidence can only be admitted if the facts proven through questioning are important parts of the party’s case, the facts cannot be proved in any other manner, and the permission is restricted to the portions of that evidence relating to those facts.

Earl’s evidence was accordingly admitted, where admissible, and judged as if it had been given at trial. However, the civil fraud action was statute-barred by the Limitations Act, RSA 2000, c L-12, for being outside the two-year limitation period. Even if it was not, Earl’s evidence confirmed he was part of the scheme against his own company. After analyzing the property and spending of the parties in the family property action, the Court had a difficult time reconciling the record and merely split the remaining property equally.