The Plaintiff sought to introduce records at trial that were not included in either the Plaintiff’s Affidavit of Records or the Defendant’s Affidavit of Records.

The Court considered that this issue engaged several Rules relating to the production and use of records in the Alberta Rules of Court. Rule 5.1 encourages early disclosure of facts and records while Rules 5.2 and 5.6 require relevant and material records to be produced in an Affidavit of Records. Rule 5.8 sets out how parties deal with records that are otherwise producible, but which a party objects to producing. Rule 5.10 imposes a continuing obligation on the parties to produce relevant and material records which are found, created, or obtained after the initial affidavit of records is served. Rule 5.15 creates rebuttable presumptions of authenticity and fact of transmission, while Rule 5.16 sets out the consequences for failing to produce a relevant and material record.

Rule 5.16 also prima facie prevents undisclosed records from being produced at trial. In conjunction with Rule 5.10, Rule 5.16 prevents trial by ambush by requiring the production of relevant and material records prior to trial. The Court noted that a party in a civil action cannot avoid its obligation to produce records in accordance with Part 5 of the Rules by simply relying on the “documents in possession” rule. The documents in possession rule means that documents in the possession of a party will be admissible against it to show knowledge of the contents. The contents will further be admissions if the party has in any way recognized, adopted, or acted upon them.

The Plaintiff repeatedly asserted that the documents should have been produced by the Defendant. The Court noted that the process for addressing failure to produce relevant and material records is found in Rule 5.11 which allows an Order for a record to be produced. It was not enough for the Plaintiff to only show that the documents were relevant and material and were not disclosed by the Defendant. This would have the effect of making Rule 5.16 meaningless.