5.1: Purpose of this Part (Disclosure of Information)
5.10: Subsequent disclosure of records
5.2: When something is relevant and material
5.5: When affidavit of records must be served
5.6: Form and contents of affidavit of records

Case Summary

This was an Application by the Plaintiff, seeking production of records respecting the Defendant’s employment records (the “Records”). The underlying Action related to a motor vehicle incident, in which the Defendant, while employed by the City of Calgary (the “City”) and driving a City transit bus, caused damage to the Plaintiff’s vehicle in an admitted “side-swipe” collision. The City opposed the Application.

The Court referred to Rule 5.1, which outlines the purpose of disclosure, also noting that Rules 5.5, 5.6 and 5.10 limit disclosure obligations. Relying on Rule 5.6(b), the Court stated that Parties to a civil Action are required to produce records that are relevant and material to the issues in the Action if they are, or have been, under the Party’s control.

In this case, because liability had been admitted, issues in the Action were limited to damages and mitigation of damages. The Amended Statement of Claim included a claim for punitive and exemplary damages. The Plaintiff argued that the Records were relevant and material to the issue of whether punitive or exemplary damages should be awarded. The Court noted that Rule 5.2 outlines the scope of relevance and materiality. Relying on the legal test for punitive damages observed in Whiten v Pilot, 2002 SCC 18, and by assessing the evidentiary foundation before the Court, the Court found the Records were relevant and material to issues in the Pleadings, to the City’s conduct in employing and deploying the Defendant as a transit bus driver, to the issue of the City’s transit bus driver practices and whether those departed from ordinary standards of decent behaviour, and to the issue of whether punitive or exemplary damages were appropriate.

The City took the position that the request to produce was effectively a “fishing expedition” and the Records contained confidential information. In response to the City’s concern of confidential information, the Court noted that confidentiality of non-privileged records is not normally a basis to refuse disclosure and production; however, the Court granted the City leave to redact specific personal information that was not relevant to the Defendant’s driving record or medical history.

For the reasons set out above, the Court ordered the City to disclose the Records in a supplemental Affidavit of Records. 

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