LC v ALBERTA, 2014 ABQB 557
1.2: Purpose and intention of these rules
5.32: When information may be used
5.33: Confidentiality and use of information
6.28: Application of this Division
6.29: Restricted court access applications and orders
6.30: When restricted court access application may be filed
6.31: Timing of application and service
6.32: Notice to media
6.33: Judge assigned to application
10.49: Penalty for contravening rules
10.50: Costs imposed on lawyer
The Plaintiffs sought to expand the scope of a proposed Class Proceeding in which parents and children were seeking damages arising out of the Director of Child Welfare’s failure to file service plans for children under Temporary Guardianship Orders within the time required. The Certification Application was stalled by interlocutory proceedings. Counsel for the Plaintiffs, Robert Lee, applied for relief under Rule 5.33 before Justice Graesser as Case Management Justice to allow the Plaintiffs to rely on records and transcripts of Questioning produced in litigation involving other Plaintiffs suing the Alberta Government and Child Welfare authorities. The initial purpose for seeking this relief was so that Mr. Lee could rely on the records and Transcripts to avoid a Costs Award that had previously been issued against him personally as counsel for the Plaintiff. Mr. Lee believed the records and transcripts would assist him on justifying his actions that led to the personal costs award. The Plaintiffs also sought to use the records and Transcripts to support their Application for Certification as a Class Action.
In advance of the Rule 5.33 Application, the Plaintiffs filed a Brief which included 89 paragraphs relating to the claim of abuse of public office and other allegations of breach of duty. The Crown and the Public Trustee took great exception to the allegations and Mr. Lee withdrew the Application to Amend the Statement of Claim to include the impugned 89 paragraphs, but the Government sought Costs against Mr. Lee personally. Mr. Lee swore an Affidavit stating that the Government did not put forward any evidence regarding the accuracy or inaccuracy of the 89 paragraphs and sought relief from the implied undertaking in Rule 5.32 and 5.33 on the basis that the Government was the source of the documents he sought to use. Mr. Lee made a Cross-Application seeking Costs on an enhanced basis for having to defend himself against the Government’s Cost Application. After the Application was set down, the Government advised that it was withdrawing its Cost Application against Mr. Lee. Mr. Lee continued his Cross-Application seeking Costs on an enhanced basis.
Graesser J. considered Rule 10.49, commenting that had the Government not sought Costs against Mr. Lee personally, Costs likely would have been in the cause, taxable by the Government at the end of the litigation in the event it succeeded or was otherwise entitled to Costs. Mr. Lee would not have incurred any Costs in defending himself from a potentially large claim for Costs. Enhanced Costs are and should be used as a consequence for bringing frivolous or vexatious claims. Enhanced Costs are also an appropriate consequence for litigation misconduct, either by the party or the party’s lawyer. In some circumstances, the Court may order Costs payable to the Court itself.
While not specifically argued, Graesser J. found it appropriate to comment on two issues raised by the Application. The first issue was the element of confidentiality involved and the manner in which confidential documents and records were treated. The second issue was regarding a concern about use of confidential information without the implied undertaking having been waived. Graesser J. noted that confidentiality when records are sought to be used in litigation, is rare. The process for “secret” information to be used is found in Rules 6.28 to 6.32. The process for sealing a courtroom, restricting publication or otherwise limiting access by the public and the press to evidence used in Court proceedings is express, and requires notice to be given to the press. It must be filed, pursuant to Rule 6.33. Graesser J. stated that, in such a process, there is no need to attach exhibits to an Affidavit. The correct procedure to be followed when an Affidavit makes reference to a potentially confidential record is for the item or the document to be referenced, marked as an exhibit and made available on request to the other party. The exhibit itself does not become part of the public record. If the exhibit is ultimately used in Court, the preservation of confidentiality is then provided for in Rule 6.30.
His Lordship was satisfied that Mr. Lee met the appropriate threshold for relief from the implied undertaking. Justice Graesser granted relief to use the requested documents and transcripts for the purposes of the Cost Application.View CanLII Details