Envacon Inc. (“Envacon”) commenced an Action against 829693 Alberta Ltd. (“829”) in relation to a commercial tenancy dispute. The Case Management Justice granted a Consent Order for the production of certain financial documents by 829 pursuant to Rules 5.10 and 5.11. When 829 failed to comply with the Order, the Case Management Justice found 829 in contempt, gave 829 the opportunity to purge its contempt, provided a deadline for 829 to purge its contempt, and ruled that Envacon was entitled to solicitor-client Costs for steps taken to obtain the financial documents. 829 appealed, and obtained a Stay of enforcement of the whole of the Case Management Justice’s Contempt Order pending the outcome of the Appeal.

Despite the Stay, and in contemplation of meeting the deadline to purge its contempt, 829’s counsel proceeded to prepare the financial documents, and in doing so, accidentally sent the documents to counsel for Envacon. Envacon applied to the Court of Appeal to use the financial documents which had been accidentally sent to them.

829 argued that it was not required to produce the documents at all, but Watson J.A. observed that such an argument hinged on whether the financial records were subject to privilege. The Court noted that if the documents were not privileged, they were “material for the purposes of the litigation in front of the Court of Queen’s Bench” and “would then normally be discoverable and would not be subject to some sort of resistance on the part of 829”.

Justice Watson differentiated the concepts of creating documents for the dominant purposes of litigation as opposed to creating documents for the purposes of the Rules of Court, for example creating materials to comply with the affidavit of records under Rules 5.5 to 5.11. His Lordship dismissed Envacon’s Application to use the financial documents sent to them in error.