5.2: When something is relevant and material
5.6: Form and contents of affidavit of records

Case Summary

The Plaintiffs entered into three development agreements and three master sales agreements for the development of three subdivisions with the Defendant, the Town of Lamont. The Town of Lamont eventually terminated the agreements and the Plaintiffs subsequently filed a Statement of Claim alleging that termination of the agreements was wrongful and that the Defendant, Tom Miller, who was Chief Administrative Officer of Lamont, acted in bad faith in relation to development delays. The Plaintiffs brought an Application seeking to amend their Statement of Claim and seeking production of the Crown Disclosure from Miller in relation to charges he was facing under the Criminal Code.

The Plaintiffs submitted that the criminal charges and the ongoing investigation went to the heart of the allegations of bad faith against the Defendants. The Defendant, Miller, argued that there was no real connection between the allegations made in the pleadings and the requested Crown Disclosure pertaining to events that occurred three years after the agreements with the Plaintiffs terminated.

Lee J. highlighted that Questioning had not yet occurred and the Application by the Plaintiffs to amend the Statement of Claim was scheduled to be heard in February 2014. The Court was concerned that the Application for an Order for disclosure of Miller's criminal charges was brought too early. Lee J. stated that disclosure on unproven criminal charges at this point in the proceedings seemed to be useful only for character evidence that would tend to show that Miller was more likely to commit improper acts because of the criminal charges. Further, if the charges against Miller resulted in convictions, then those records could be disclosed at that time. Additionally, Lee J. pointed out that there was no prejudice to the Applicants if the Application was not granted, because it could be brought again in February 2014.

The Court held that the Application to obtain Miller's Criminal Disclosure was premature at this point in the proceedings, as it was not directly relevant and material to Miller's liability in the civil proceedings. Lee J. noted that, after Questioning or after the Statement of Claim was amended, such disclosure might then be material and relevant. The Application for disclosure was dismissed.

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