OLKOWSKI v NANO-GREEN BIOREFINERIES INC, , 2023 ABKB 411
This was an Application by the self-represented Applicant, Dr. Olkowski, seeking to have the Respondents, Nano-Green Biorefineries Inc. (“Nano-Green”) and Blaine Kunkel, Nano-Green’s Chief Executive Officer, held in Contempt of Court. Dr. Olkowski claimed that the Respondents used information obtained from him and Dr. Laarveld (a former Co-Plaintiff) through record production and Questioning in making a complaint about Dr. Olkowski to the University of Saskatchewan (the “Complaint”) and presented evidence and information at the University’s Hearing Board proceeding (the “Contempt Application”).
In response, Nano-Green cross applied to strike a number of paragraphs in Dr. Olkowski’s Amended Statement of Claim and to summarily dismiss some of the allegations (the “Strike Application”).
In considering the Contempt Application, Graesser J. considered the law surrounding Rules 10.52 and 10.53 and confirmed that civil Contempt must be proven beyond a reasonable doubt. Graesser J. also cited Rule 5.33, which codifies the “implied undertaking” rule and provides that any information or record obtained in the course of litigation, including records produced through Affidavit of Records or information obtained during Questioning, cannot be used for any other purposes.
Graesser J. noted that a novel question in this case was whether a Defendant could use information from the record production and Questioning of a former Co-Plaintiff in an Application that did not involve the Co-Plaintiff. Nano-Green and Mr. Kunkel did not provide any evidence suggesting that they obtained a Court Order exempting them from the operation of Rule 5.33, nor did they mention that they obtained consent from Dr. Laarveld to use information disclosed by him. Graesser J. drew adverse inferences from the absence of any mention of a Court Order or consent from Dr. Laarveld. Graesser J. found that the Respondents would not have known about the existence of certain records and presented them to the Hearing Board but for the Questioning and record production in this Action, and concluded that he was satisfied beyond a reasonable doubt that Mr. Kunkel and Nano-Green used records and information learned in the discovery process to formulate the Complaint.
Graesser J. established that the Respondents breached Rule 5.33, but Dr. Olkowski had not provided information that he had been harmed or disadvantaged in this Action, nor were the breaches flagrant or particularly egregious. Therefore, he did not impose any sanctions or consequences on the Respondents, but awarded Costs in any event of Trial, paid forthwith as per Column 1 of Schedule C.
With respect to the Strike Application, among other things, Nano-Green and Mr. Kunkel sought to strike paragraphs in the Amended Statement of Claim (the “Impugned Paragraphs”) under Rule 3.68 for lack of jurisdiction or a cause of action. Alternatively, they sought to strike the Impugned Paragraphs that overlapped with defamation claims already advanced by Dr. Olkowski in Saskatchewan (the “Saskatchewan Action”), as well as paragraphs that related to the patent prosecution process (the “Patent Prosecution Claim”). Further, the Respondents sought Summary Dismissal of the Impugned Paragraphs relating to the defamation claims on the basis of absolute or qualified privilege.
Graesser J. noted that the relief sought by Dr. Olkowski under the Patent Prosecution Claim could only be awarded in patent litigation, which could only be dealt with in the Federal Court, and struck the Impugned Paragraphs regarding the Patent Prosecution Claim. In regard to res judicata, Graesser J. noted that the doctrine applies to issues or claims that have already been resolved in other litigation. Since the Applicant had appealed the Saskatchewan Action, res judicata may apply if that Appeal is upheld. However, the Court noted that some communications between the parties leading up to or during the litigation between them might be relevant to Costs or quantum of damages, and a communication might be made with an intent to cause economic harm to someone. Therefore, Graesser J. partly dismissed the Respondents’ Strike Application, noting that any defamation issues in the Saskatchewan Action would be fully and finally dealt with in that Province, and that and the Impugned Paragraphs were relevant only as they related to matters outside of the tort of defamation.
In dismissing the Respondents’ privilege claims, Graesser J. noted that qualified privilege is lost where the communication is tainted by malice or goes beyond necessity and reasonableness. The parties had conflicting evidence on this issue that could not be resolved through Affidavit evidence. While absolute privilege may apply to complaints to regulatory bodies, the availability of an absolute privilege depends on the characterization of the Interim Associate Vice-President, to whom the Complaint was addressed. Graesser J. directed that this issue be dealt with at Trial.View CanLII Details