GISELBRECHT v KICHTON CONTRACTING LTD, 2022 ABQB 473
5.33: Confidentiality and use of information
6.11: Evidence at application hearings
The Court was responsible for the case management of six separate Actions.
Two of the Actions were commenced by Originating Applications (“Originating Application Actions”). The Respondents in the Originating Application Actions sought an Order permitting them to “use” or “utilize” Affidavits of Records and Transcripts of Questioning for Discovery from the other Actions. The Court noted that the Respondents’ argument relied on lifting the implied undertaking of confidentiality in accordance with Rule 5.33 (1)(a) or (b) and the use of evidence from other Actions on application pursuant to Rule 6.11(f).
The Court noted that the Respondents had provided two notices in accordance with Rule 6.11(f) to the Applicants (with respect to each of the Originating Application Actions), seeking the Court’s permission to consider certain evidence from the other Actions and the ability to “utilize” that evidence.
The Court rejected the Respondents’ assertion that the Applicants’ earlier provision of a similar Rule 6.11 notice (“Applicants’ Notice”) was relevant to the lifting of confidentiality in accordance with Rule 5.33, noting:
- the Applicants’ Notice did not constitute an agreement;
- there was no evidence the Respondents had agreed to what the Applicant had given notice of in their Rule 6.11 notice;
- there were different parties to the Actions; and
- notice pursuant to Rule 6.11 does not automatically result in evidence being admitted.
The Court further determined that although the issues and parties in the Originating Application Actions were similar, they were not the same. The Court found that even in the event the Actions involved the same issues and parties, it would not make the evidence from the other Actions relevant and material to the issues in the Originating Application Actions.
The Court dismissed the Respondents’ Application to “use”, “utilize”, or have the Court consider in the Originating Application Actions, evidence from Affidavits of Records and Transcripts of Questioning for Discovery from the other Actions.View CanLII Details