In the underlying Action, Stanley Case, his spouse, children and grandchildren (in trust) (the “Plaintiffs”) brought an Action for losses allegedly incurred with respect to the overall decrease in value to their Canaccord Genuity Corp. (the “Defendant”) investment portfolios (the “Case Accounts”). The Plaintiffs alleged that Stanley had communicated a change in investment objectives from “High Risk” to “Low Risk” but that the Defendant did not appropriately monitor or administer the accounts accordingly. In the Application before Master Schulz, the Plaintiffs had objected to various questions and Undertakings requested by the Defendant at Questioning on the basis of relevance, materiality or spousal privilege (the “Application”).

Master Schulz reviewed the Rules for Part 5 Questioning including the purpose of Part 5 under Rule 5.1 and that, pursuant to Rule 5.25, parties are not required to answer any questions that are not relevant and material, or those questions that are properly objected to on the basis of privilege, including spousal privilege. Master Schulz went onto review Rule 5.2 as to what information is to be deemed relevant and material. Citing the seminal jurisprudence on point, Master Schulz noted that relevance is primarily determined by the pleadings, whereas materiality relates to whether the information can help, directly or indirectly, to prove a fact in issue. Master Schulz further emphasized that the Questioning process is confined to eliciting facts of primary relevance and secondary relevance wherein primary relevance attaches to facts directly in issue, while secondary relevance attaches to facts from which the existence of primary facts may be directly inferred. In light of the foregoing, Master Schulz reviewed and ruled upon each of the specific refusals.

Master Schulz then turned to the issue of objections grounded in spousal immunity. Counsel for the Plaintiffs had objected to various questions posed to Maryann Case regarding what Stanley may have told her about the accounts. Master Schulz explained that the Alberta Evidence Act, RSA 2000, c A-18 generally abolishes the spousal immunity rule in civil proceedings in Alberta and creates a “spousal privilege” that protects communications from being forcibly disclosed. This Rule is subject to the exception that a Justice, under the discovery principles of Rule 5.1 may, in some cases, require spousal privilege to give way to the need for disclosure of relevant communications.

Master Schulz determined that the communications between Stanley Case and Maryann fell within this exception and accordingly granted the order compelling the related questions to be answered.