1.2: Purpose and intention of these rules
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
5.25: Appropriate questions and objections

Case Summary


There were eight Defendants in this Action, including the National Sciences and Engineering Council of Canada ("NSERC") Defendants and certain Media Defendants.

The Applicant, Dr. Kwok, was employed as an assistant professor with the University of Alberta and received research grants from NSERC. In 2005, after an investigation, the University of Alberta concluded that Dr. Kwok violated the University's Research and Scholarship Integrity Policy. Dr. Kwok resigned; however, the University of Alberta again investigated him and determined that he had misappropriated NSERC grant money. The parties reached a settlement, but the University of Alberta provided its investigation reports to NSERC. NSERC terminated the grants it awarded to Dr. Kwok and banned him from receiving further funding. Additionally, in 2010, Canwest and National Post published articles that accused Dr. Kwok of plagiarism and misusing grant funds.

In July 2010, Dr. Kwok filed a Statement of Claim and then, in January 2011, filed an Amended Statement of Claim. Between January and November 2011, the Parties participated in Questioning and, in February 2012, Dr. Kwok filed a Second Amended Statement of Claim. In March 2012, Dr. Kwok requested the consent of the Defendants to file a Third Amended Statement of Claim, but the Defendants refused.

Several issues were raised in this Application: whether Dr. Kwok should be granted leave to amend the Second Amended Statement of Claim; whether the Defendants should be required to provide answers to questions posed during Questioning; and whether the Media Defendants should be ordered to produce documents previously withheld on the basis of journalistic source privilege.

Referencing Rule 1.2, Mahoney J. stated that the Rules of Court were to be liberally construed in a civil proceeding to “secure the just, most expeditious and least expensive” result based on the merits. The Court then considered whether Dr. Kwok should be granted leave to amend the Second Amended Statement of Claim pursuant to Rules 3.62 and 3.65 and the legal principles referred to in Manson Insulation Products Ltd v Crossroads C & I Distributors, 2011 ABQB 51 and 869120 Alberta Ltd v B & G Energy Ltd, 2011 ABQB 209 - an amendment should be allowed no matter how careless or late, unless there is prejudice, and unless clear exceptions (such as those noted in Manson) apply.

The Court was persuaded that Dr. Kwok's claims satisfied the general rule, and none of the exceptions applied. Where there was a dispute as to documentary evidence supporting a proposed amendment, Mahoney J. noted that the merit of the evidence needed to be weighed by the Trial Judge; therefore, this was not a reason for denying an amendment.

The Parties also disputed whether the questions posed during Questioning were relevant and material to the issues identified in the Statement of Claim in effect at the time of Questioning. The Court considered what was meant by "pleading" and concluded that it referred to all of the pleadings, not just the version in effect at the time a question was asked. Mahoney J. noted that, under Rule 5.25(1)(a), a person was required to answer only relevant and material questions during Questioning and stated:

A question, record or information is relevant and material only if the answer could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings, or ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.

Mahoney J. remarked that counsel ought to be given wide latitude in posing questions and that, under Rule 5.25(2), a party being questioned may object to questions, but only for one or more of a specific list of reasons. The questions did not need to be directly linked to a pleading; an examining lawyer could indirectly approach a subject and go beyond the pleadings if the question reasonably related to the matter. Finally, Mahoney J. stated that there ought to be a generous approach to relevance; if counsel could disclose a rational strategy, that was sufficient.

The Court then considered each of the disputed questions and noted that the use of repetitive questions, utilized sparingly, might be part of an examination strategy. Mahoney J. held that repeating a question was not oppressive and did not amount to intimidation. The Defendants were ordered to answer the majority of the disputed questions.

Lastly, the Court considered whether the Media Defendants should be directed to provide answers to questions, which were objected to on the grounds of "journalistic source privilege". Mahoney J. was satisfied that three of the four "Wigmore criteria" set out by the Supreme Court of Canada in R v National Post, 2010 SCC 16, were met. Further, it was noted that the relationship between professional journalists and their sources ought to be "sedulously" fostered and no persuasive reason was offered to reduce the value of this relationship; therefore, the Application to compel answers from the Media Defendants was denied.

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