BLOUGH v BUSY MUSIC INC, 2018 ABQB 560
5.1: Purpose of this Part (Disclosure of Information)
5.12: Penalty for not serving affidavit of records
5.2: When something is relevant and material
5.25: Appropriate questions and objections
5.5: When affidavit of records must be served
5.6: Form and contents of affidavit of records
5.7: Producible records
6.20: Form of questioning and transcript
6.7: Questioning on affidavit in support, response and reply to application
6.8: Questioning witness before hearing
The underlying Action (the “Main Action”) and two Counterclaims (the “Counterclaims”) arose out of the validity and enforceability of a song-writing agreement between the Plaintiff, country music artist (“Blough”), and the Defendant, music publisher (“BMI”). The Defendant counterclaimed against Blough, Blough’s initial counsel in the Main Action (“Rath”), and Blough and Rath’s corporation (“WE”) (collectively, the “Defendants by Counterclaim”).
In April of 2016, the Defendants by Counterclaim filed an Application for an Order striking BMI’s Counterclaims in their entirety (the “Strike Application”). In November of 2016, both Blough and Rath were cross-examined in relation to the Strike Application. BMI brought an Application (the “Within Application”) seeking an Order, inter alia: (1) compelling Rath to produce a proper Affidavit of Records in compliance with Rules 5.5, 5.6, and 5.7 without the alleged improper assertion of solicitor-client privilege; (2) compelling the production of undertakings and answers to questions refused by both Rath and Blough; and (3) sanctions related to alleged obstructionist conduct by the Defendants by Counterclaim, including the imposition of a penalty pursuant to Rule 5.1.
In making his determination, Jones J. considered a number of Rules contained in Parts 5 and 6 of the Rules and the applicable jurisprudence. Jones J. noted that, pursuant to Rule 5.6(b)(i), an Affidavit of Records must disclose all records that “are relevant and material to the issues in the action” and Rule 5.2(1) which states that a record or information is relevant and material only if it can reasonably be expected to (i) significantly help determine one or more of the issues raised in the Pleadings, or (ii) to ascertain evidence that could reasonably be expected to do the same.
Justice Jones went on to discuss the sanctions requested pursuant to Rule 5.12 for Rath’s failure to produce a compliant Affidavit of Records. While refusing to penalize Rath on the current record under Rule 5.12, Justice Jones stated that he intended to review Rath’s solicitor’s file to determine if the claims of solicitor-client privilege would afford the type of blanket relief requested.
Justice Jones moved on to discuss the appropriateness of questions and objections under Rule 5.25. His Lordship noted that Blough was Questioned on his Affidavit in support of the Strike Application under Rule 6.7, while Rath was Questioned as a witness before a hearing pursuant to Rule 6.8. Justice Jones highlighted that Rule 6.20 provides guidance on the form of Questioning under both Rules 6.7 and 6.8 and emphasized that the form of the Questioning is more akin to Cross-Examination at Trial and distinct from Questioning for discovery pursuant to Part 5. Justice Jones determined that the possible scope of questions in Cross-Examination under Rule 6.7 is very wide and is not confined to the contents of the Affidavit but rather, covers anything relevant to the pending motion. Additionally, Justice Jones found that there are few restrictions on when Rule 6.8 may be used, as long as its use is to get information for an application and not merely a concealed Questioning under Part 5 (examination for discovery).
Jones J. applied the above Rules and reasoning to each specific refused question or undertaking and concluded that Rath was to produce the files in question. He concluded that if there were any relevant and material records that were not privileged, then Rath was required to provide a further and better Affidavit of Records in accordance with the Rules. Additionally, Justice Jones ordered that Rath and Blough both provide answers to undertakings and answer to the questions objected to as set out in his Lordship’s reasons.View CanLII Details