5.13: Obtaining records from others
5.6: Form and contents of affidavit of records

Case Summary

The Respondent sued the City of Calgary for breach of statutory duty, negligence and bad faith for damages arising from his injuries, which allegedly resulted from a failure by the City to implement adequate security measures at C-Train stations. The Respondent sought disclosure from the City of records that were in the possession of the police, and the City refused disclosure on the basis that they were not the City’s records. The question was whether police records were under the “control” of the City such that they were required to be disclosed pursuant to Rule 5.6.

Paperny J.A., writing for the Court, first considered the meaning of “control” and noted that the language under the previous Discovery Rules was different than the language under Rule 5.6. The former Rules required disclosure of records in a party’s “possession, custody or power”, while the current Rule 5.6 requires a party to disclose all relevant and material records that “are or have been under the party’s control”. Under the former Rules, for a Party to have power over a record being held by a non-Party, the Party had to have a legal right to access the record or to get copies of it from the non-Party. Paperny J.A. held the view that this test for disclosure under the former Rules remained the same under the current Rules, despite the fact that the language in the current Rules had been simplified to “control”. Further, Paperny J.A. stipulated that the right to access the record must be specific to the Party from whom disclosure was sought; merely having the ability to bring an Application for Third Party Disclosure under the Rules of Court was not sufficient to indicate control. It was also not enough that the Party be able to request the record from the non-Party because of an existing relationship between them.There had to be a corresponding ability to enforce compliance with the request, in order to constitute “control” over the record.

The Respondent relied on Hunter v Eck (1977), 8 AR 508 (CA), in support of the proposition that police records were in the possession and under the power of the municipality that established the police service. The Court of Appeal focused its deliberation on whether it should overrule this precedent, taking a balanced consideration of certain criteria, including the age of the precedent, whether it had been relied upon so as to create settled expectations, whether it contained an obvious, demonstrable flaw, and whether it was classified as Reasons for Judgment Reserved or a Memorandum of Judgment.

In the end, the Court of Appeal held that the Hunter Decision could not serve as the basis for any conclusion that the City had a legal right to access the records of the Police, so as to give the City “control” over those records for the purpose of Rule 5.6. The Respondent did not point to any other basis on which the City could be said to have control over those records, and no such basis could be found in the Police Act. Paperny J.A. emphasized that while the City could make an Application for the records under Freedom of Information legislation or in a Court Application for Non-Party Records, pursuant to Rule 5.13, both of those options were equally available to the Respondent and as such, did not suffice to establish control on the part of the City. The Appeal was allowed and the Order directing the City to request the records of the Police was set aside. Either Party was left with the option of making an Application pursuant to Rule 5.13 to obtain relevant and material records from the Police.

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