Can evidence from a previous proceeding be tendered on behalf of a party?

By way of exception to the general rule at common law, the courts came to permit evidence given at a former proceeding by a witness who had since died or become incapacitated to be tendered on behalf of a party, provided that three conditions were met: (a) the adverse party had had the opportunity to cross-examine the witness in the earlier proceeding; (b) the questions in issue at the later trial were substantially the same as those in the earlier proceeding; and (c) the later trial was between the same parties as the earlier proceeding or between persons claiming under them: Town of Walkerton v. Erdman (1894), 1894 CanLII 9 (SCC), 23 S.C.R. 352.

This exception to the general rule at common law did not apply to the examination for discovery of a deponent who was unavailable at trial because, under the traditional discovery rules, such a person could not be cross-examined "with a view of testing and setting in a proper light the whole of the evidence of the party examined": Cartwright v. Toronto (City) (1914), 1914 CanLII 554 (SCC), 50 S.C.R. 215 at 219.