HAIRY BULL v BIG SWALLOW, 2023 ABKB 261
5.13: Obtaining records from others
5.33: Confidentiality and use of information
5.6: Form and contents of affidavit of records
The Applicant applied to require the Crown to produce disclosure and police investigation records (the “Crown Disclosure”) for a criminal matter in which the Respondent was the accused. The Respondent was previously granted Restraining Orders against the Applicant and the Applicant alleged that the Restraining Orders were made on a basis of fraudulently manufactured evidence.
The Court noted that the Application engaged Rule 5.13, which allows a party to apply for an Order requiring a person who is not a party to produce records.
As a preliminary issue, the Court reviewed decisions describing a “screening procedure” in which a party is required to disclose the existence of Crown disclosure that is relevant and material to a civil Action in an Affidavit of Records (“AOR”). The Court revised the screening procedure described in those cases to comply with the Rules. The Court noted that this screening procedure was not followed, and no submissions were made as to whether the Respondent should have referred to the Crown Disclosure in an AOR pursuant to Rule 5.6. As such, the Court did not comment on such obligations but noted that Rule 5.33 requires information and records produced in an AOR to be treated as confidential and further provides that such records may only be used by the recipient for the purpose of carrying on the Action.
The Court determined that some but not all of the Crown Disclosure should be produced. Although the Attorney General of Alberta consented to the production of the Crown Disclosure, the Court determined that not all of the Crown Disclosure had been shown to be relevant and material. As such, the Court ordered only the relevant and material parts of the Crown Disclosure to be produced. However, in addition to the confidentiality requirements of Rule 5.33, the Court prohibited the Applicant from making copies of any part of the Crown Disclosure or using such records for any purpose other than this Action.View CanLII Details