LAY v LAY, 2012 ABCA 303


5.1: Purpose of this Part (Disclosure of Information)
5.2: When something is relevant and material
5.6: Form and contents of affidavit of records

Case Summary

The Case Management Judge refused to order further production and particulars. The Appellants appealed on 44 grounds; however, the Court combined the 44 grounds into four.

The Appellants submitted that a party is entitled to inspect any Record referred to in a Pleading. The Pleading read “…all of the records of Steep Rock were sold as assets”. The Court held that the Pleading did not refer to a Record; the Pleadings described a chronology of events.

The second ground of Appeal was that the Case Management Judge erred in determining whether Records were relevant and material. The Appellants sought Records that related to a sale of shares to assist in valuating what those shares were worth at the time of a past transaction. The Court held that in determining the value of shares, events that were unknown at the time of the sale, or that occurred afterwards, are not relevant to the determination of the fair value of the shares on the valuation date.

The third ground of Appeal related to redacted records and claims of privilege. The Respondent’s Affidavit of Records described certain Records as redacted, and the Respondents claimed privilege over the redacted portion of those Records. The Appellants submitted that the Respondents waived privilege over Records listed in the Respondent’s Affidavit of Records. The Respondent’s counsel explained that the production was done electronically and portions of otherwise producible Records were subject to a claim of privilege, and that privilege was asserted. The Court held that privilege was properly claimed.

The fourth ground of Appeal was that the Case Management Judge erred in failing to order further particulars. The Case Management Judge held that the Appellant’s request was premature as Pleadings had closed, but Questioning had not commenced. The Court held that the Case Management Judge is uniquely placed to appreciate the progress of the litigation and upheld the Case Management Judge’s Decision.

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