1.2: Purpose and intention of these rules
5.11: Order for record to be produced
5.7: Producible records
5.8: Records for which there is an objection to produce
6.44: Persons who are referees
6.45: References to referee
6.46: Referee’s report
10.29: General rule for payment of litigation costs

Case Summary

The Plaintiffs sought an Order directing the Defendant companies to provide a further and better Affidavit of Records, to pay unpaid Cost Awards, and to answer outstanding Undertakings.

The Defendants had bundled their Affidavit of Records, and argued that their bundling of records was no different than the common practice under Rule 5.8 of bundling the contents of a lawyer’s file when asserting a claim of privilege The Plaintiffs acknowledged that the Rules permit groups of records to be bundled pursuant to Rule 5.7 but argued that the Defendants’ bundling practice did not provide “sufficient detail to enable another party to understand what it contains” pursuant to Rule 5.7(2)(b). Justice Feasby held that the adequacy of the descriptions is inextricably linked to whether the records are “all of the same nature”, as required by Rule 5.7(2)(a), which had never been judicially considered in Alberta.

The Plaintiffs argued that records “of the same nature” should be interpreted to mean that they are the same type or class of record and should be from a defined period, and that this is consistent with the purpose and intention of the Rules as provided by Rule 1.2. The Court held that given the longstanding practice in Alberta of bundling records from a common source, “I cannot read ‘same nature’ as to restrict the practice of bundling only to situations where there is the same type or class of record such as bank statements or invoices.” The Court held that the approach to describing bundles must be adjusted depending on the context, and that the principle of proportionality that governs production equally applies to description of bundles. Where a bundle is compromised of homogenous records, a terse description is all that is needed, whereas the more heterogeneous the contents of a bundle, the more robust the description that is required. As the bundles before the Court contained a mix of different types of records, a more thorough description was required, and the Court ordered the Defendants to provide bundle descriptions with sufficient detail to enable the Plaintiffs to understand what each bundle contains.

The Plaintiffs also applied pursuant to Rule 5.11 for an Order compelling the Defendants to disclose records that the Defendants had asserted privilege over. After reviewing the law on solicitor-client privilege and litigation privilege, the Court held that the descriptions of the bundled documents provided by the Defendants did not appear to fall under either category. While the Court may review the records to assess the privilege claim pursuant to Rule 5.11(2)(a) or a referee may be appointed to inspect the records pursuant to Rules 6.44-6.46, Feasby J. ordered the Defendants to review the records “with the benefit of these Reasons” and ordered that any change must be reflected in the updated Affidavit of Records.

The Court also found that the Defendants had failed to comply with a previous Court Order to produce Undertakings. Justice Feasby ordered the Defendants to provide the Undertakings in the updated Affidavit of Records.

Finally, with respect to outstanding Costs, the Court noted that one outstanding Costs Award was due within 30 days of the Order and the other Costs Award was silent on timing. After noting that the unsuccessful party must pay Costs forthwith pursuant to Rule 10.29(1), Feasby J. held that a further Order for the Defendants to pay Costs added nothing to the existing directions. Accordingly, Justice Feasby held that the Plaintiffs were permitted to pursue enforcement proceedings in respect to the unpaid Costs.

View CanLII Details