DEMB v TAYLOR, 2017 ABQB 257


5.10: Subsequent disclosure of records
5.13: Obtaining records from others
5.4: Appointment of corporate representatives
5.6: Form and contents of affidavit of records
10.52: Declaration of civil contempt

Case Summary

The Plaintiffs applied for an Order declaring the Defendant, Taylor, in contempt of Court, or in the alternative, an Order to compel further production and answers to questions refused during Questioning. Jones J. considered Rule 10.25, and noted that the standard of proof required in a contempt Application is “proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice”. His Lordship considered the Order at issue, and observed that Taylor had provided a sufficient Supplemental Affidavit of Records. Jones J. held that Taylor was not in contempt of Court.

With respect to the Plaintiff’s Application ordering that Taylor provide answers to questions refused during Questioning, Justice Jones noted that many of the questions related to documents that may or may not have been in Taylor’s control. Jones J. considered Rule 5.13 which provides that, if a party is seeking to obtain documents from a non-party to the litigation they make an application to the Court. Jones J. noted further that Rule 5.6 provides that a party is required to disclose all records that are relevant and material to the issues in the Action, and Rule 5.10 provides that if a party later finds relevant and material documents in their control, they must serve a Supplementary Affidavit of Records. Even though many of the documents sought by the Plaintiff had been produced in a parallel Action, Taylor was still required to produce the documents in an Affidavit of Records pursuant to Rule 5.6.

Jones J. concluded that Taylor was not required to obtain and produce records of a non-party unless Taylor had the right to access them. Taylor was questioned in his personal capacity and not as the corporate representative of any of the corporate Defendants and he therefore did not have an obligation to inform himself as would be required under Rule 5.4. Justice Jones concluded that Taylor was required to disclose records under his control that were relevant and material pursuant to Rule 5.6, even if they had previously been produced in the parallel Action.

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