Electronic Records
41.1 Definitions
41.2 Application
41.3 Authentication
41.4 Application of the best evidence rule
41.5 Presumption of integrity
41.6 Standards
41.7 Proof by affidavit
41.8 Cross‑examination
Signatures of Judges
42 Judicial
notice of signatures
43 Proof
of signature
44 Proof
of foreign judgments
Notarial Documents
45 Notarial
documents
Protests of Bills and
Notes
46 Protest
as evidence
47 Oaths
made outside Alberta
48 Validity
of sworn statements
49 Informalities
in affidavits
50 Copy
of deposition as evidence
Proof of Wills
51 Probate
of will, etc., as evidence
52 Death
outside Alberta
Copies of Instruments
53 Copy
of registered document as proof
54 Original
document and copy
55 Proof
of telegrams, etc.
Miscellaneous
56 Case
before foreign court
57 Attestation
as to validity of instrument
58 Comparison
of disputed writing
59 Impounding
documents
60 Recitals,
etc., 20 years old
61 Proving
old documents
62 Construction
of Act
63 Proving
death of member of Forces
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Definitions
1 In this Act,
(a) “action”
includes
(i) an issue, matter, arbitration, reference, investigation or
inquiry,
(ii) a prosecution for an offence committed against an Act of the
Legislature or in force in Alberta, or against a bylaw or regulation made under
the authority of any such Act, and
(iii) any other proceeding authorized or permitted to be tried,
heard, had or taken by or before a court under the law of Alberta;
(b) “court”
includes a judge, arbitrator, umpire, commissioner, provincial judge, justice
of the peace or other officer or person having by law or by the consent of
parties authority to hear, receive and examine evidence;
(c) “witness”
includes a person
(i) who in the course of an action is examined orally on discovery,
or is cross‑examined on an affidavit made by the person,
(ii) who makes answer by affidavit on any interrogatories, or
(iii) who makes an affidavit of documents on
discovery.
RSA 1980 cA‑21 s1
Application of Act
Application of Act
2 This Act extends and applies to evidence offered
or taken
(a) orally,
(b) by
interrogatories,
(c) by
affidavits,
(d) by
the production of documents or things, or
(e) otherwise,
by or before a court in an action.
RSA 1980 cA‑21 s2
Competency of Witnesses
Admission of witness
with interest, etc.
3(1) No person offered as a witness in an action
shall be excluded from giving evidence by reason of any alleged incapacity from
crime or interest.
(2) A person offered as a witness shall be admitted
to give evidence notwithstanding that the person has an interest in the matter
in question or in the event of the action or that the person has been
previously convicted of a crime or offence.
RSA 1980 cA‑21 s3
Competency as witnesses
4(1) The parties to an action and the persons on
whose behalf the action is brought, instituted, opposed or defended are, except
as otherwise provided in this Act, competent and compellable to give evidence
on behalf of themselves or of any of the parties.
(2) The
spouses and adult interdependent partners of the parties and persons mentioned
in subsection (1) are, except as otherwise provided in this Act, competent and
compellable to give evidence on behalf of any of the parties.
(3) Nothing in this section makes the defendant in
a prosecution under an Act of the Legislature compellable to give evidence for
or against himself or herself.
RSA 2000 cA‑18
s4;2002 cA‑4.5 s15
Evidence as to
intercourse
5 Without limiting the generality of section 4, a
spouse or an adult interdependent partner may in an action give evidence that
he or she did or did not have sexual intercourse with the other spouse or adult
interdependent partner at any time or within any period of time before or
during the marriage or adult interdependent relationship.
RSA 2000 cA‑18
s5;2002 cA‑4.5 s15
Incriminating questions
6(1) A witness shall not be excused from answering
any question on the ground that the answer may tend to incriminate the witness
or may tend to establish the witness’s liability to prosecution under an Act of
the Legislature.
(2) A witness who testifies in any proceedings has
the right not to have any incriminating evidence so given used to incriminate
that witness in any other proceedings, except in a prosecution for perjury or
for the giving of contradictory evidence.
RSA 1980 cA‑21
s6;1985 c15 s1
Questions re adultery
7(1) No witness in an action whether a party to it
or not is liable to be asked or shall be bound to answer a question tending to
show that the witness has been guilty of adultery unless the witness has already
given evidence in the same action in disproof of the alleged adultery.
(2) Notwithstanding anything in this Act,
subsection (1) does not apply in the case of any prosecution for an offence
against the criminal law of Canada but evidence given in any such prosecution
and tending to show the commission of adultery is inadmissible in evidence in
any civil proceeding.
RSA 1980 cA‑21 s7
Communications made
during marriage or adult
interdependent relationship
8 A spouse or an adult interdependent partner is not
compellable to disclose any communication made to him or her by the other
spouse or adult interdependent partner during the marriage or adult
interdependent relationship.
RSA 2000 cA‑18
s8;2002 cA‑4.5 s15
Quality assurance
records
9(1) In this section,
(a) “quality
assurance activity” means a planned or systematic activity the purpose of which
is to study, assess or evaluate the provision of health services with a view to
the continual improvement of
(i) the quality of health care or health services, or
(ii) the level of skill, knowledge and competence of health service
providers;
(b) “quality
assurance committee” means a committee, commission, council or other body that
has as its primary purpose the carrying out of quality assurance activities and
that is
(i) appointed by
(A) a regional health authority,
(B) the Alberta Cancer Board,
(C) the Alberta Mental Health Board,
(D) the board of an approved hospital under the Hospitals Act, or
(E) the operator of a nursing home,
(ii) established by or under another enactment of Alberta, or
(iii) designated by an order of the Minister of Health and Wellness as
a quality assurance committee for the purposes of this section,
but does not include a
committee whose purpose, under legislation governing a profession or
occupation, is to review the practice of or to deal with complaints respecting
the conduct of a person practising a profession or occupation;
(c) “quality
assurance record” means a record of information in any form that is created or
received by or for a quality assurance committee in the course of or for the
purpose of its carrying out quality assurance activities, and includes books,
documents, maps, drawings, photographs, letters, vouchers and papers and any
other information that is written, photographed, recorded or stored in any
manner, but does not include software or any mechanism that produces records.
(2) A
witness in an action, whether a party to it or not,
(a) is
not liable to be asked, and shall not be permitted to answer, any question as
to any proceedings before a quality assurance committee, and
(b) is
not liable to be asked to produce and shall not be permitted to produce any
quality assurance record in that person’s or the committee’s possession or
under that person’s or the committee’s control.
(3) Subsection
(2) does not apply to original medical and hospital records pertaining to a
patient.
(4) Notwithstanding
that a witness in an action
(a) is
or has been a member of,
(b) has
participated in the activities of,
(c) has
made a report, statement, memorandum or recommendation to, or
(d) has
provided information to,
a quality assurance
committee, the witness is not, subject to subsection (2), excused from
answering any question or producing any document that the witness is otherwise
bound to answer or produce.
(5) Neither
(a) the
disclosure of any information or of any document or anything contained in a
document, or the submission of any report, statement, memorandum or
recommendation, to a quality assurance committee for the purpose of its quality
assurance activities,
nor
(b) the
disclosure of any information, or of any document or anything contained in a
document, that arises out of the quality assurance activities of a quality
assurance committee,
creates any liability on the part of the person making the
disclosure or submission.
RSA 1980 cA‑21
s9;1989 cD‑21.5 s13;1999 c14 s1
Corroborative Evidence
Evidence re breach of
promise
10 The plaintiff in an action for breach of promise
of marriage shall not succeed in the action unless the plaintiff’s testimony is
corroborated by some other material evidence in support of the promise.
RSA 1980 cA‑21 s11
Evidence in action by
heir, etc.
11 In an action by or against the heirs, next of
kin, executors, administrators or assigns of a deceased person, an opposed or
interested party shall not obtain a verdict, judgment or decision on that
party’s own evidence in respect of any matter occurring before the death of the
deceased person, unless the evidence is corroborated by other material
evidence.
RSA 1980 cA‑21 s12
Evidence in action by
lunatic, etc.
12 In an action by or against a lunatic so found or
by or against an inmate of a mental health facility, or a person who from
unsoundness of mind is incapable of giving evidence, an opposed or interested
party shall not obtain a verdict, judgment or decision on that party’s own
evidence unless that party’s evidence is corroborated by other material
evidence.
RSA 1980 cA‑21 s13
Principal and Agent
Principal and agent
13 On the trial of an action between a principal
and an agent founded on any cause of action, if the principal satisfies the
judge of the existence of a duty on the part of the agent to do any act or
thing, the burden of proof as to the doing of that act or thing is then placed
on the agent.
RSA 1980 cA‑21 s14
Oaths and Affirmations
Form, etc., of oath
14(1) When an oath may lawfully be administered to a
person
(a) as
a witness or as a deponent in an action,
(b) on
appointment to an office or employment, or
(c) on
any occasion whatever,
that person is bound
by the oath administered if it has been administered in a form and with any
ceremonies that the person may declare to be binding.
(2) When an oath is duly administered and taken,
the fact that the person to whom it was administered has at the time of taking
the oath no religious belief does not for any purpose affect the validity of
the oath.
RSA 1980 cA‑21 s15
Administration of oath
15(1) An oath may be administered in the form and
manner following:
The person taking the oath
shall hold the Bible or New Testament, or Old Testament in the case of an
adherent of the Jewish religion, in the person’s uplifted hand and the officer
administering the oath shall say: “You
swear that the evidence you give as touching the matters in question in this
action or matter shall be the truth, the whole truth and nothing but the
truth. So help you God”, to which the
person being sworn shall say “I do” or give his or her assent to it in a manner
satisfactory to the court or to the officer administering the oath.
(2) Without in any way limiting or restricting the
manner in which an oath may be administered, the oath may be taken or sworn on
any one of the 4 Gospels.
RSA 1980 cA‑21 s16
Scottish oath
16 If a person to whom an oath is to be
administered desires to swear with uplifted hand in the form and manner in
which an oath is usually administered in Scotland the person shall be permitted
to do so, and the oath shall be administered to the person in that form and manner
without further question.
RSA 1980 cA‑21 s17
Affirmation, etc.,
instead of oath
17(1) If, in an action or on an occasion when an oath
is required or permitted, a person called as a witness, or required or desiring
to give evidence or to make an affidavit or deposition, objects to taking an
oath or is objected to as incompetent to take an oath, if the presiding judge
or the person qualified to take affidavits or depositions is satisfied that the
witness or deponent objects to being sworn
(a) from
conscientious scruples,
(b) on
the ground of the religious belief of the witness or deponent, or
(c) on
the ground that the taking of an oath would have no binding effect on the
conscience of the witness or deponent,
the witness or
deponent may make an affirmation and declaration instead of taking an oath.
(2) The
affirmation and declaration of that person is of the same force and effect as
if that person had taken an oath in the usual form.
(3) When the evidence is in the form of an
affidavit or written deposition, the person before whom it is taken shall
certify that the deponent satisfied the person that the deponent was a person
entitled to affirm.
RSA 1980 cA‑21 s18
Statutory declaration
18 Any person authorized by law to administer oaths
or to take affidavits in any matter may receive the solemn declaration of any
person making it before the authorized person, in the following form, in
attestation of the execution of any writing, deed or instrument or of the truth
of any fact or of any account rendered in writing:
I, ,
solemnly declare that (state the fact or
facts declared to), and I make this solemn declaration conscientiously
believing it to be true and knowing that it is of the same force and effect as
if made under oath.
Declared
before me at this
__ day of ____ , 20 .
RSA 1980 cA‑21 s19
Evidence of child
19(1) In a legal proceeding where a child of tender
years is offered as a witness and the child does not, in the opinion of the
judge, justice or other presiding officer, understand the nature of an oath,
the evidence of the child may be received though not given on oath if, in the
opinion of the judge, justice or other presiding officer, the child is
possessed of sufficient intelligence to justify the reception of the evidence and
understands the duty of speaking the truth.
(2) No case shall be decided on the evidence unless
the evidence is corroborated by other material evidence.
RSA 1980 cA‑21 s20
Evidence of mute person
20 A witness who is unable to speak may give
evidence in any manner by which the witness can make it intelligible.
RSA 1980 cA‑21 s21
Attendance of Witnesses
Action against witness
disobeying subpoena
21 When a witness who has been
(a) served
in due time with
(i) a subpoena issued out of any court in Alberta, or
(ii) a notice authorized instead of a subpoena, and
(b) paid
the witness’s proper witness fees and conduct money,
defaults in obeying the subpoena or notice without any
lawful and reasonable impediment, the witness, in addition to any penalty the
witness may incur for a contempt of court, is liable to an action, on the part
of the person by whom or on whose behalf the witness has been subpoenaed or
summoned, for any damage that that person sustains or is put to by reason of
the default.
RSA 1980 cA‑21 s22
Examination of Witnesses
Cross-examination
22(1) A witness may be cross‑examined with
regard to previous statements made by the witness in writing, or reduced to
writing, and relative to the matter in question, without the writing being
shown to the witness.
(2) If
it is intended to contradict the witness by the writing, the witness’s attention shall, before the
contradictory proof is given, be called to those parts of the writing that are
to be used for the purpose of contradicting the witness.
(3) The judge or other person presiding may, at any
time during the trial or proceeding, require the production of the writing
for the judge’s or the other presiding
person’s inspection, and may on production make any use of the writing for the
purposes of the trial or proceedings that the judge or other presiding person
thinks fit.
RSA 1980 cA‑21 s23
Proof of contradictory
statement
23(1) If a witness on cross‑examination with
regard to a former statement made by the witness about the matter in question
and inconsistent with the witness’s present testimony does not distinctly admit
that the witness made the statement, proof may, subject to subsection (2), be
given that the witness did in fact make that statement.
(2) Before that proof is given, those circumstances
of the alleged statement that are sufficient to designate the particular
occasion shall be mentioned to the witness, and the witness shall be asked
whether the witness did make the statement.
RSA 1980 cA‑21 s24
Proof of previous
conviction of witness
24(1) A witness may be asked whether the witness has
been convicted of a crime and, on being so asked, if the witness either denies
the fact or refuses to answer, the conviction may be proved.
(2) A
certificate
(a) that
specifies the substance and effect only, omitting the formal part, of the
charge and the conviction, and
(b) that
purports to be signed by the officer having the custody of the records of the
court in which the offender was convicted, or by the deputy of the officer,
is, on proof of the
identity of the witness as the convicted person, sufficient evidence of the
conviction without proof of the signature or official character of the person
appearing to have signed the certificate.
(3) A fee of not more than $1 may be demanded or
taken for the certificate.
RSA 1980 cA‑21 s25
Contradiction of witness
25(1) A party producing a witness shall not be
allowed to impeach the witness’s credit by general evidence of bad character
but the party may contradict the witness by other evidence.
(2) If
the witness in the opinion of the judge or other person presiding proves
adverse, the party producing the witness may by leave of the judge or other
person presiding prove that the witness made at some other time a statement
inconsistent with the witness’s present testimony.
(3) Before the proof referred to in subsection (2)
is given, those circumstances of the inconsistent statement that are sufficient
to designate the particular occasion shall be mentioned to the witness and the
witness shall be asked whether the witness did make the statement.
RSA 1980 cA‑21 s26
Admissibility of Previous
Court Proceedings
Admissibility of
previous court proceedings
26(1) In this section,
(a) “conviction”
means a conviction
(i) that is not subject to appeal or further appeal, or
(ii) in respect of which no appeal is taken;
(b) “finding
of guilt” means the plea of guilty by an accused to an offence or the finding
that an accused is guilty of an offence made before or by a court that makes an
order directing that the accused be discharged for the offence either
absolutely or on the conditions prescribed in a probation order, when
(i) the order directing the discharge is not subject to further
appeal, or
(ii) no appeal is taken in respect of the order directing the
discharge,
and “found guilty” has a
corresponding meaning.
(2) When
(a) a
person has been convicted of or is found guilty of an offence anywhere in
Canada, and
(b) the
commission of that offence is relevant to an issue in an action,
then, whether or not
that person is a party to the action, proof of the conviction or the finding of
guilt, as the case may be, is admissible in evidence for the purpose of proving
that the person committed the offence.
(3) A
certificate containing the substance and effect only, omitting the formal part,
of the charge and of the conviction or finding of guilt, as the case may be,
purporting to be signed by
(a) the
officer having the custody of the records of the court in which the offender
was convicted or found guilty, or
(b) the
deputy of the officer,
is, on proof of the
identity of a person as the offender, sufficient evidence of the conviction of
that person or the finding of guilt against that person, without proof of the
signature or official character of the person appearing to have signed the
certificate.
(4) When
proof of the conviction or finding of guilt of a person is tendered in evidence
pursuant to subsection (2) in an action for defamation, the conviction of that
person or the finding of guilt against that person is conclusive proof that the
person committed the offence.
(5) When
proof of a conviction or a finding of guilt is admitted in evidence under this
section, the contents of the information, complaint or indictment relating to
the offence of which the person was convicted or found guilty is admissible in
evidence.
(6) Subject to subsection (4), the weight to be
given the conviction or finding of guilt shall be determined by the judge or
jury, as the case may be.
RSA 1980 cA‑21 s27
Statutes and Public
Documents
Proof of letters patent
27(1) Letters patent under the Great Seal of the
United Kingdom of Great Britain and Northern Ireland or of any other of Her
Majesty’s realms and territories may be proved by the production of an
exemplification of the letters patent or of the enrolment thereof, under the
Great Seal under which the letters patent issued.
(2) The exemplification of the letters patent has
the like effect for all purposes against the Crown as well as against all other
persons as the letters patent exemplified by it have.
RSA 1980 cA‑21 s28
Copies of statutes,
etc., as evidence
28 Copies of statutes, official gazettes,
ordinances, regulations, proclamations, journals, orders, appointments to
office, notices of them and other public documents purporting to be printed by
or under the authority of the Parliament of Great Britain and Northern Ireland
or of the Imperial Government or by or under the authority of the government or
of any legislative body within any of Her Majesty’s realms and territories
shall be admitted in evidence to prove the contents of them.
RSA 1980 cA‑21 s29
Proof of proclamations,
etc.
29(1) In the absence of evidence to the contrary,
proof of a proclamation, order, regulation or appointment to office may be
given by the production
(a) of
a copy of the Canada Gazette or of the official gazette for any province or
territory of Canada purporting to contain a notice of the proclamation, order,
regulation or appointment,
(b) of
a copy of the proclamation, order, regulation or appointment purporting to be
printed by the Queen’s Printer or by the Government Printer for the province or
territory, or
(c) of
a copy of or extract from the proclamation, order, regulation or appointment
and purporting to be certified to be a true copy by a Minister or head of a
department or by the Clerk of the Executive Council or a person designated by
the Clerk or by the head of a department of the Government of Canada or of a
provincial or territorial government or by the head’s deputy or acting deputy.
(2) This
section refers to a proclamation, order, regulation or appointment to office
made or issued
(a) by
the Governor General or the Governor General in Council, or other chief
executive officer or administrator of the Government of Canada,
(b) by
or under the authority of a Minister or head of a department of the Government
of Canada or of any provincial or territorial government in Canada, or
(c) by a Lieutenant Governor or Lieutenant
Governor in Council or other chief executive officer or administrator of
Alberta or of any other province or territory in Canada.
RSA 1980 cA‑21
s30;1984 c55 s3;1987 c29 s1
Order signed by
Secretary of State or Provincial Secretary
30(1) An order in writing purporting to be signed by
the Secretary of State of Canada and to be written by command of the Governor
General shall be received in evidence as the order of the Governor General.
(2) An order in writing purporting to be signed by
the Provincial Secretary and to be written by command of the Lieutenant
Governor shall be received in evidence as the order of the Lieutenant Governor.
RSA 1980 cA‑21 s31
Published notices as
evidence
31 Copies of proclamations and of official and
other documents, notices and advertisements printed in the Canada Gazette or in
The Alberta Gazette or in the official gazette of any province or territory in
Canada are proof, in the absence of evidence to the contrary, of the originals
and of their contents.
RSA 1980 cA‑21 s32
Judicial notice
32 Notwithstanding anything in this Act, every Act
or regulation of Alberta or of Canada and every proclamation and every order
made or issued by the Governor General or the Governor General in Council or by
the Lieutenant Governor or the Lieutenant Governor in Council, and every publication
of them in the Canada Gazette or The Alberta Gazette, shall be judicially
noticed.
RSA 1980 cA‑21 s33
Copies of documents as
evidence
33 When the original record could be received in
evidence, a copy
(a) of
an official or public document in Alberta purporting to be certified under the
hand of the proper officer or the person in whose custody the official or
public document is placed, or
(b) of
a document, bylaw, rule, regulation or proceeding, or of an entry in a register
or other book of a corporation, carrying on business in Alberta and created by
a charter or Act of the Legislature or a charter or ordinance of the North-West
Territories, purporting to be certified under the seal of the corporation and
the hand of its presiding officer or secretary,
is receivable in evidence without proof of the seal of the
corporation or of the signature or official character of the person or persons
appearing to have signed it and without further proof.
RSA 1980 cA‑21 s34
Privileged document
34(1) When a document is in the official possession,
custody or power of a member of the Executive Council, or of the head of a
department of the public service of Alberta, but a deputy head or other officer
has the document in the deputy head’s or other officer’s personal possession
and is called as a witness, the deputy head or other officer, acting by the
direction and on behalf of the member of the Executive Council or head of a
department, is entitled to object to the production of the document on the
ground that it is privileged.
(2) The
objection may be taken by that deputy head or other officer in the same manner
and has the same effect as if the member of the Executive Council or head of a
department were personally present and made the objection.
(3) A
subpoena shall not issue out of a court requiring
(a) the
attendance of an employee, or
(b) the
production of a document of a Department in the official custody or possession
of an employee,
without an order of
the court.
(4) An
employee shall not disclose or be compelled to disclose information obtained by
the employee in the employee’s official capacity if a member of the Executive
Council certifies that in the member’s opinion
(a) it
is not in the public interest to disclose that information, or
(b) the
information cannot be disclosed without prejudice to the interests of persons
not concerned in the litigation.
(5) The
information certified under subsection (4) is privileged.
(6) In this section, “employee” means a person
employed in the public service of Alberta, whether the employee’s employment is
permanent or temporary or on a full‑time or part‑time basis.
RSA 1980 cA‑21
s35;1983 cL‑10.1 s57
Copies of entries in
departmental books
35(1) A copy of an entry in any book of account kept
in any department, commission, board, or other branch of the Government of
Canada or of Alberta is admissible in evidence as proof, in the absence of
evidence to the contrary, of the entry, and of the matters, transactions and
accounts recorded in it, if it is proved by the oath or affidavit of an officer
of the branch concerned that
(a) the
book was, at the time of the making of the entry, one of the ordinary books
kept in the branch,
(b) the
entry was apparently, and as the deponent believes, made in the usual and ordinary
course of business of the branch, and
(c) the
copy is a true copy of the entry.
(2) When
by an Act or regulation under the Act provision is made for the issue by a
department, commission, board, or other branch of the Government of Canada or
of Alberta of a licence required for the doing or having of any act or thing,
or provision is made for the issue of any other document, the affidavit of an
official of the branch concerned stating that
(a) the
official has charge of the appropriate records,
(b) the
official has made a careful examination and search of those records, and
(c) in
any given case
(i) a licence or other document has been issued,
(ii) the official has been unable to find that a licence or other
document has been issued, or
(iii) though a licence or other document has been issued, it has since
been suspended or cancelled,
is admissible in
evidence as proof, in the absence of evidence to the contrary, that the licence
or other document has or has not been issued, or has been suspended or
cancelled, as the case may be.
(3) When evidence is offered by affidavit pursuant
to this section, it is not necessary to prove the official character of the
person making the affidavit if that information is set out in the body of the
affidavit.
RSA 1980 cA‑21 s36
Birth records, etc., as
evidence
36 A copy of the record of a birth, marriage or
death in the possession of a department of the government of a province or
territory purporting to be certified as a true copy of the original by the
officer who has custody of the original record, is admissible in evidence as
proof of the original record and of its possession by the department.
RSA 1980 cA‑21 s37
Certificate of
weighmaster as evidence
37 A certificate or extract from a record used by a
weighmaster or grain inspecting officer under the Canada Grain Act (Canada), if signed and sealed as provided by that
Act, is proof, in the absence of evidence to the contrary, of the facts stated
in the certificate or extract without proof of the seal or of the signature or
official character of the person appearing to have signed it.
RSA 1980 cA‑21 s38
Copies of public books,
etc., as evidence
38(1) When a book or other document is of so public a
nature as to be admissible in evidence on its mere production from the proper
custody, a copy of the book or other document or an extract from it is
admissible in evidence if it is proved
(a) that
the copy or extract is an examined copy or examined extract, or
(b) that
the copy or extract purports to be signed and certified as a true copy or true
extract by the officer to whose custody the original book or document has been
entrusted.
(2) The officer to whose custody the original book
or document has been entrusted shall on payment of a sum not exceeding $0.20
for each folio of 100 words furnish a certified copy of the book or document or
certified extract from it to a person applying for it at a reasonable time.
RSA 1980 cA‑21 s39
Conclusiveness of
documents
39 If an Act or regulation provides that a document
is evidence of a fact without anything in the context to indicate that the
document is conclusive evidence, then the document is admissible in evidence in
any action, and the fact is deemed to be established in the absence of any
evidence to the contrary.
RSA 1980 cA‑21 s40
Photographic film as
evidence
40(1) In this section,
(a) “person”
includes
(i) the Government of Canada and of any province or territory of
Canada and any department, commission, board or branch of any of those
governments,
(ii) a corporation, and
(iii) the heirs, executors, administrators or other legal
representatives of a person;
(b) “photographic
film” includes a photographic plate, microphotographic film and photostatic
negative, and “photograph” has a corresponding meaning.
(2) When
a bill of exchange, promissory note, cheque, receipt, instrument, agreement,
document, plan or a record or book or entry in it kept or held by a person
(a) is
photographed in the course of an established practice of that person for
photographing objects of the same or a similar class in order to keep a
permanent record of it, and
(b) is
destroyed by or in the presence of the person or of one or more of the person’s
employees or is delivered to another person in the ordinary course of business
or is lost,
a print from the
photographic film is admissible in evidence in all cases and for all purposes
for which the object photographed would have been admissible.
(3) When
a bill of exchange, promissory note, cheque, receipt, instrument, agreement or
other executed or signed document was so destroyed before the expiration of 6
years
(a) from
the date when in the ordinary course of business either the object or the
matter to which it related ceased to be treated as current by the person having
custody or control of the object, or
(b) from
the date of receipt, by the person having custody or control of the object, of
notice in writing of any claim in respect of the object or matter prior to the
destruction of the object,
whichever is the later
date, the court may refuse to admit in evidence under this section a print from
a photographic film of the object.
(4) Subsection
(3) does not apply in any case where a photographic print is tendered by
(a) a
government;
(b) the
Bank of Canada;
(c) a
municipal corporation;
(d) a
Metis settlement;
(e) a
board of a school district or school division under the School Act;
(f) The
Board of the Northland School Division No. 61 under the Northland School Division Act;
(g) a
regional health authority under the Regional
Health Authorities Act.
(5) Proof
of compliance with the conditions prescribed by this section may be given
either orally or by affidavit sworn before a notary public by any person having
knowledge of the facts and, unless the court otherwise orders, a notarial copy
of that affidavit is admissible in evidence instead of the original affidavit.
(6) When pursuant to the Land Titles Act a certificate of title is removed from the
register, and is replaced by 2 photostatic negatives, the 2 negatives, notwithstanding
that the certificate of title has not been destroyed, are admissible in
evidence in all cases and for all purposes for which the certificate of title
would have been admissible.
RSA 1980 cA‑21
s41;1983 c18 s1;
1994 cR‑9.07 s25(1);1998 c22 s2
Bank records as evidence
41(1) In this section,
(a) “bank”
means a bank to which the Bank Act
(Canada) applies, and includes a branch, agency or office of the bank;
(b) “court”
means the court, judge or arbitrator under the Arbitration Act or person before whom a legal proceeding is held or
taken for the purposes of which proceeding it is required to inspect or take
copies of entries in the books or records of a bank;
(c) “legal
proceeding” means a civil proceeding or inquiry in which evidence is or may be
given, and includes an arbitration.
(2) Subject
to this section, a copy of an entry in a book or record kept in a bank shall in
all legal proceedings be received in evidence as proof, in the absence of
evidence to the contrary, of the entry and of the matters, transactions and
accounts therein.
(3) A
copy of an entry in the book or record shall not be received in evidence under
this section unless it is first proved
(a) that
the book or record was at the time of the making of the entry one of the ordinary
books or records of the bank,
(b) that
the entry was made in the usual and ordinary course of business,
(c) that
the book or record is in the custody or control of the bank, and
(d) that
the copy is a true copy thereof.
(4) Evidence
to prove the matters required by subsection (3) to be proved may be given by
the manager or accountant of the bank and may be given orally or by affidavit
sworn before a commissioner for taking affidavits or other competent authority
of the like nature.
(5) A
bank or officer of a bank is not compellable in a legal proceeding to which the
bank is not a party
(a) to
produce a book or record, the contents of which can be proved under this
section, or
(b) to
appear as a witness to prove the matters, transactions and accounts recorded in
it,
unless so ordered by
an order of the court made for special cause.
(6) On
the application of a party to a legal proceeding, the court may order that that
party be at liberty to inspect and take copies of entries in the books or
records of a bank for the purposes of the legal proceeding.
(7) The
person whose account is to be inspected shall be notified of the application at
least 2 clear days before the hearing of it.
(8) If
it is shown to the satisfaction of the court that the person whose account is
to be inspected cannot be notified personally, the court may order the notice
to be given by addressing it to the bank.
(9) The
costs of an application to a court under this section and the costs of anything
done or to be done under an order of the court made under this section are in
the discretion of the court.
(10) The
court may order the costs or a part of the costs to be paid to any party by the
bank when the costs have been occasioned by default or delay on the part of the
bank.
(11) An
order against a bank made under subsection (10) may be enforced as if the bank
were a party to the proceeding.
(12) Holidays shall be excluded from the computation
of time under this section.
RSA 1980 cA‑21 s42
Electronic
Records
Definitions
41.1 In this section
and sections 41.2 to 41.8,
(a) “electronic record” means information that
(i) is recorded or stored on any medium in or by
a computer system or other similar device, and
(ii) can be read or perceived by a person or a
computer system or other similar device,
and
includes a display, printout or other output of that information, other than a
printout referred to in section 41.4(3);
(b) “electronic records system” includes the
computer system or other similar device by or in which information is recorded
or stored, and any procedures related to the recording and storage of
electronic records.
2001 cE‑5.5 s33
Application
41.2(1) Sections
41.3 to 41.8 do not modify any common law or statutory rule relating to the
admissibility of records, except the rules relating to authentication and best
evidence.
(2) A court may have regard to evidence adduced under sections
41.3 to 41.8 in applying any common law or statutory rule relating to the
admissibility of records.
2001 cE‑5.5 s33
Authentication
41.3 A person seeking
to introduce an electronic record as evidence has the burden of proving its
authenticity by evidence capable of supporting a finding that the electronic
record is what the person claims it to be.
2001 cE‑5.5 s33
Application
of the best evidence rule
41.4(1) Subject to
subsection (3), where the best evidence rule is applicable in respect of an
electronic record, it is satisfied on proof of the integrity of the electronic
records system.
(2) The integrity of an electronic record may be proved by
evidence of the integrity of the electronic records system by or in which the
information was recorded or stored, or by evidence that reliable encryption
techniques were used to support the integrity of the electronic record.
(3) An electronic record in the form of a printout that has been
manifestly or consistently acted on, relied on or used as the record of the
information recorded or stored on the printout is the record for the purposes
of the best evidence rule.
2001 cE‑5.5 s33
Presumption
of integrity
41.5 For the purposes
of section 41.4(1), in the absence of evidence to the contrary, the integrity
of the electronic records system in which an electronic record is recorded or
stored is proved
(a) by evidence that supports a finding that at
all material times the computer system or other similar device was operating
properly or, if it was not, the fact of its not operating properly did not
affect the integrity of the electronic record, and there are no other
reasonable grounds to doubt the integrity of the electronic records system,
(b) if it is established that the electronic
record was recorded or stored by a party to the proceedings who is adverse in
interest to the party seeking to introduce it, or
(c) if it is established that the electronic
record was recorded or stored in the usual and ordinary course of business by a
person who is not a party to the proceedings and who did not record or store it
under the control of the party seeking to introduce it.
2001 cE‑5.5 s33
Standards
41.6 For the purpose
of determining under any rule of law whether an electronic record is
admissible, evidence may be presented in respect of any standard, procedure,
usage or practice on how electronic records are to be recorded or stored, having
regard to the type of business or endeavour that used, recorded or stored the
electronic record and the nature and purpose of the electronic record.
2001 cE‑5.5 s33
Proof
by affidavit
41.7 The matters
referred to in sections 41.4(3), 41.5 and 41.6 may be established by an
affidavit given to the best of the deponent’s knowledge or belief.
2001 cE‑5.5 s33
Cross-examination
41.8(1) A deponent
of an affidavit referred to in section 41.7 that has been introduced in
evidence may be cross-examined as of right by a party to the proceedings who is
adverse in interest to the party who introduced the affidavit or caused the
affidavit to be introduced.
(2) Any party to the proceedings may, with leave of the court,
cross‑examine a person referred to in section 41.5(c).
2001 cE‑5.5 s33
Signatures of Judges
Judicial notice of
signatures
42(1) All courts, judges, justices, masters, clerks
of court, commissioners and other officers acting judicially shall take
judicial notice of the signature of any judge of a court of Canada or of
Alberta or of any other province or territory in Canada when the signature is
appended or attached to a decree, order, certificate, affidavit or judicial or
official document.
(2) For the purposes of this section, the members
of the Canadian Transport Commission are deemed judges.
RSA 1980 cA‑21 s43
Proof of signature
43(1) No proof is required of the handwriting or
official position of any person certifying to the truth of a copy of or extract
from a proclamation, order, regulation or appointment.
(2) Any copy or extract referred to in subsection
(1) may be in print or in writing or partly in print and partly in writing.
RSA 1980 cA‑21 s44
Proof of foreign
judgments
44 A judgment, decree or other judicial proceeding
recovered, made, had or taken
(a) in
the Supreme Court of Judicature in England,
(b) in
a Court of Record in England or Ireland,
(c) in
any of the Superior Courts of Law, Equity or Bankruptcy in Scotland,
(d) in
a Court of Record in Canada or in a British Colony or Possession, or
(e) in
a Court of Record of the United States of America or of any State of the United
States of America,
may be proved by an exemplification of it under the seal of
the Court without any proof of the authenticity of the seal or other proof
whatever, in the same manner as a judgment, decree or other judicial proceeding
of the Court of Queen’s Bench may be proved by an exemplification of it.
RSA 1980 cA‑21 s45
Notarial Documents
Notarial documents
45(1) A copy of a notarial act or instrument in
writing
(a) made
in Quebec before a notary,
(b) filed,
enrolled or enregistered by the notary, and
(c) certified
by a notary or prothonotary to be a true copy of the original that is certified
to be in the possession of that notary or prothonotary,
is receivable in
evidence in the place of the original.
(2) The
certified copy so received has the same force and effect as the original would
have if produced and proved.
(3) Proof
by the certified copy may be rebutted or set aside by proof
(a) that there is no original of the copy,
(b) that
the copy is not a true copy of the original in some material particular, or
(c) that
the original is not an instrument of such a nature as may by the law of Quebec
(i) be made before a notary, or
(ii) be filed, enrolled or enregistered by a
notary.
RSA 1980 cA‑21 s46
Protests of Bills and
Notes
Protest as evidence
46(1) A protest of a bill of exchange or promissory
note purporting to be under the hand of a notary public wherever made shall be
received in evidence as proof, in the absence of evidence to the contrary, of
the allegations and facts stated in the protest.
(2) A note, memorandum or certificate purporting to
be made by a notary public in Canada, in the notary public’s own handwriting,
or to be signed by the notary public at the foot of or embodied in a protest,
or in a regular register of official acts purporting to be kept by the notary
public is proof, in the absence of evidence to the contrary, of the fact of
notice of non‑acceptance or non‑payment of a bill of exchange or
promissory note having been sent or delivered at the time and in the manner
stated in the note, memorandum or certificate.
RSA 1980 cA‑21 s47
Oaths made outside
Alberta
47(1) An oath, affidavit, affirmation, solemn
declaration or statutory declaration administered, sworn, affirmed or made
outside Alberta before
(a) a
judge,
(b) a
magistrate,
(c) an
officer of a court of justice,
(d) a
commissioner for taking affidavits or other competent authority of the like
nature,
(e) a
notary public,
(f) the
head of a city, town, village, township or other municipality,
(g) an
officer of any of Her Majesty’s diplomatic or consular services, including an
ambassador, envoy, minister, charge d’affairs, counsellor, secretary, attache,
consul‑general, consul, vice‑consul, pro‑consul, consular
agent, acting consul‑general, acting consul, acting vice‑consul and
acting consular agent,
(h) an
officer of the Canadian diplomatic, consular or representative services,
including, in addition to the diplomatic and consular officers mentioned in
clause (g), a high commissioner, permanent delegate, acting high commissioner,
acting permanent delegate, counsellor and secretary, or
(i) a
Canadian Government Trade Commissioner or an Assistant Canadian Government
Trade Commissioner,
exercising his or her
functions or having jurisdiction or authority as such in the place in which it
is administered, sworn, affirmed or made, is as valid and effectual to all
intents and purposes as if it had been administered, sworn, affirmed or made
within Alberta before a commissioner for taking affidavits within Alberta.
(2) An
oath, affidavit, affirmation, solemn declaration or statutory declaration
administered, sworn, affirmed or made outside Alberta before a notary public
for Alberta or before a commissioner for taking affidavits within Alberta is as
valid and effectual to all intents and purposes as if it had been administered,
sworn, affirmed or made within Alberta before a commissioner for taking
affidavits within Alberta.
(3) A
document that purports to be signed by a person mentioned in subsection (1) or
(2) in testimony of an oath, affidavit, affirmation or statutory declaration
having been administered, sworn, affirmed or made before the person, and on
which the person’s office is shown below the person’s signature, and
(a) in
the case of a notary public, that purports to have impressed on it or attached
to it the person’s official seal,
(b) in
the case of a person mentioned in subsection (1)(f), that purports to have
impressed on it or attached to it the seal of the municipality, or
(c) in
the case of a person mentioned in subsection (1)(g), (h) or (i), that purports
to have impressed on it or attached to it the person’s seal or the seal or
stamp of the person’s office or of the office to which the person is attached,
is admissible in evidence without proof of the person’s
signature or of the person’s office or official character or of the seal or
stamp and without proof that the person was exercising the person’s functions
or had jurisdiction or authority in the place in which the oath, affidavit,
affirmation or statutory declaration was administered, sworn, affirmed or made.
RSA 1980 cA‑21 s48
Validity of sworn
statements
48(1) An oath, affidavit, affirmation, solemn
declaration or statutory declaration administered, sworn, affirmed or made
within or outside Alberta before a person who holds a commission as an officer
in the Canadian Forces and is on full‑time service is as valid and
effectual to all intents and purposes as if it had been administered, sworn,
affirmed or made within Alberta before a commissioner for taking affidavits
within Alberta.
(2) A document that purports to be signed by a
person mentioned in subsection (1) in testimony of an oath, affidavit,
affirmation or statutory declaration having been administered, sworn, affirmed
or made before the person and on which the person’s rank and unit are shown
below the person’s signature is admissible in evidence without proof of the
person’s signature or of the person’s rank or unit or that the person is on
full‑time service.
RSA 1980 cA‑21 s49
Informalities in
affidavits
49 An informality in the heading or other formal
requisites of an affidavit, declaration or affirmation made or taken before a
commissioner authorized to take affidavits under the Commissioners for Oaths Act or under this Act is not an objection
to the reception in evidence of the affidavit, declaration or affirmation if
the court before which it is tendered thinks proper to receive it.
RSA 1980 cA‑21 s50
Copy of deposition as
evidence
50 When an examination or deposition of a party or
witness has been taken before a judge or other officer or person appointed to
take it, copies of the examination or deposition certified under the hand of
the judge, officer or other person taking it shall, without proof of the
signature, be received and read in evidence, saving all just exceptions.
RSA 1980 cA‑21 s51
Proof of Wills
Probate of will, etc.,
as evidence
51 In order to establish a devise or other testamentary
disposition of or affecting real estate, probate of the will or letters of
administration with the will annexed containing the devise or disposition, or a
copy of it under the seal of the court granting it, or under the seal of the
Court of Queen’s Bench or the Supreme Court of the Northwest Territories if the
probate or letters of administration were granted by that court shall be
received in evidence as proof, in the absence of evidence to the contrary, of
the will and of its validity and contents.
RSA 2000 cA‑18
s51;RSA 2000 c16(Supp) s40
Death outside Alberta
52(1) When a person dies in any of Her Majesty’s
realms and territories outside Alberta after having made a will sufficient to
pass real estate in Alberta purporting to devise, charge or affect real estate
in Alberta, the party desiring to establish its disposition, after giving one
month’s notice to the opposing party to the proceeding of the party’s intention
to do so, may produce and file
(a) the
probate of the will,
(b) letters
of administration with the will annexed, or
(c) a
certified copy of the probate or letters of administration under the seal of
the court that granted it, and a certificate of the judge, registrar or clerk
of the court that the original will is filed and remains in the court and
purports to have been executed before 2 witnesses,
and the probate or
letters of administration or certified copy with the certificate shall, unless
the court otherwise orders, be received in evidence as proof, in the absence of
evidence to the contrary, of the will and of its validity and contents.
(2) The production of the certificate mentioned in
subsection (1) is proof, in the absence of evidence to the contrary, of the
facts stated in the certificate and of the authority of the judge, registrar or
clerk without proof of the person’s appointment, authority or signature.
RSA 1980 cA‑21 s53
Copies of Instruments
Copy of registered
document as proof
53(1) A copy of a document certified to be a true
copy under the hand and seal of office of the Registrar or Deputy Registrar
under the Land Titles Act, in whose
office the document is deposited, filed, kept or registered, is proof, in the
absence of evidence to the contrary, of the original except in the cases
provided for in section 54.
(2) An abstract of title or a general certificate
under seal furnished by a registrar in Alberta is proof, in the absence of
evidence to the contrary, of its contents.
RSA 1980 cA‑21 s54
Original document and
copy
54(1) When a public officer produces an original
document on a subpoena or on a notice, the document shall not be deposited in
the court unless otherwise ordered.
(2) When
an order is made that the original be deposited in court, the order shall be
delivered to the public officer and the original document shall be retained in
court and filed.
(3) If
the document is not deposited and if the document or a copy of it is needed for
subsequent reference or use, a copy of it or of so much of it as is considered
necessary, certified under the hand of the officer producing the document,
shall be filed as an exhibit in the place of the original document.
(4) The officer producing the document is entitled
to receive, in addition to the officer’s ordinary fees, the fees for a
certified copy which shall be paid to the officer before it is delivered or
filed.
RSA 1980 cA‑21 s55
Proof of telegrams, etc.
55(1) A party intending to prove the original of a
telegram, letter, shipping bill, bill of lading, delivery order, receipt,
account or other written instrument used in business or other transactions
(a) may
give notice to the opposing party at least 10 days before the trial or other
proceeding in which the proof is intended to be adduced that the party intends
to give in evidence as proof of the contents a writing purporting to be a copy
of the document, and
(b) in
the notice shall name some convenient time and place for the inspection of it.
(2) The
copy may then be inspected by the opposing party and without further proof is
sufficient evidence to prove the contents of the original document and shall be
accepted and taken instead of the original unless the party receiving the
notice within 4 days after the time mentioned for the inspection gives notice
that the party intends to dispute the correctness or genuineness of the copy at
the trial or proceeding, and to require proof of the original.
(3) The costs attending any production or proof of
the original documents are in the discretion of the court.
RSA 1980 cA‑21 s56
Miscellaneous
Case before foreign
court
56(1) When, on application to the Court of Queen’s
Bench, it is made to appear that a court or tribunal of competent jurisdiction
in a foreign country has by commission, order or other process authorized the
obtaining of the testimony, in or in relation to any action, suit, proceeding
or inquiry pending in or before the foreign court or tribunal of a witness out
of its jurisdiction and within the jurisdiction of the Court of Queen’s Bench,
the Court may order the examination of the witness before the person appointed
and in the manner and form directed by the commission, order or other process.
(2) The
Court by that order or by a subsequent order,
(a) may
command
(i) the attendance of a person named in the order for the purpose of
being examined, or
(ii) the production of any writing, document or thing mentioned in the
order,
and
(b) may
give all directions with regard to the time and place of the examination and
all other matters connected with it that seem proper.
(3) The
order may be enforced and any disobedience to it punished in like manner as the
case of an order made by the Court of Queen’s Bench in an action pending in the
Court.
(4) A
person whose attendance is so ordered is entitled to the same conduct money and
payment for expenses and loss of time as on attendance at a trial in the Court
of Queen’s Bench.
(5) A
person examined under the commission, order or other process
(a) may
object to answer and may refuse to answer any questions that the person would
be entitled to object to or refuse to answer in an action pending in the Court
of Queen’s Bench, and
(b) shall
not be compelled to produce at the examination any writing, document or thing
that the person could not be compelled to produce at the trial of such an
action.
(6) When the commission, order or other process or
the instruction of the court accompanying it directs that the person to be
examined affirm or be sworn, the person appointed to examine him or her has the
authority to administer the oath to him or her or take his or her affirmation.
RSA 1980 cA‑21 s57
Attestation as to
validity of instrument
57 If an attestation to an instrument is not
requisite to the validity of the instrument, it is not necessary that the
instrument be proved by the attesting witness.
RSA 1980 cA‑21 s58
Comparison of disputed
writing
58 A witness shall be permitted to make comparison
of a disputed writing with any writing proved to the satisfaction of the court
to be genuine, and those writings and the evidence of witnesses respecting them
may be submitted to the court or jury as evidence of the genuineness or
otherwise of the writing in dispute.
RSA 1980 cA‑21 s59
Impounding documents
59 When a document is received in evidence, the
court admitting it may direct that it be impounded and kept in custody for any
period and subject to any conditions that seem proper or until the further
order of the court, as the case may be.
RSA 1980 cA‑21 s60
Recitals, etc., 20 years
old
60 On the completion of any contract for sale of
land, recitals, statements of facts and matters and descriptions of parties,
contained in deeds, instruments, Acts or statutory declarations that are 20
years old at the date of the contract for sale of land, shall be taken to be
sufficient proof of the truth of the recitals, statements and descriptions
subject to any stipulations to the contrary in the contract, and except so far
as they are proved to be inaccurate.
RSA 1980 cA‑21 s61
Proving old documents
61 In any action there shall, in the case of a
document proved or purporting to be not less than 20 years old, be made any
presumption that immediately before April 30, 1969 would have been made in the
case of a document of like character proved or purporting to be not less than
30 years old.
RSA 1980 cA‑21 s62
Construction of Act
62 The provisions of this Act shall not be taken to
exclude any method of proving documents or facts in any other way in which they
may by law be proved.
RSA 1980 cA‑21 s63
Proving death of member
of Forces
63 The production of a certificate in writing
(a) stating
that the person named in the certificate was a member of any of Her Majesty’s
Forces,
(b) stating
that the person has been officially reported as dead or presumed to be dead,
and
(c) purporting
to be signed by an authority authorized in that behalf under the National Defence Act (Canada) or under
regulations made under that Act,
is sufficient proof of the death of that person and of all
the facts stated in the certificate for any purpose to which the authority of
the Legislature extends, and also of the office, authority and signature of the
person giving or making the certificate without any proof of the person’s
appointment, authority or signature.
RSA 1980 cA‑21 s64