This was an Application in a class action where the Plaintiff sought to rely on a transcript of a corporate representative’s deposition taken in related U.S. litigation (“Peterson Transcript”). The Defendants objected to its use, citing the common law implied undertaking of confidentiality. The Court addressed the interplay of Rules 5.33 and 6.11.

With respect to Rule 5.33, the Court held that the Rule has codified and thereby supplanted the broader common law implied undertaking of confidentiality in Alberta. Rule 5.33 applies only to information obtained under Division 1 of Part 5 of the Rules, such as questioning transcripts and affidavits of records within Alberta proceedings. It does not extend to materials generated in foreign proceedings. Since the Peterson Transcript was created in a U.S. proceeding and not under Alberta’s discovery rules, it falls outside the scope of Rule 5.33. The Court confirmed that the implied undertaking does not apply, and no relief under Rule 5.33(1)(a) was necessary.

The Court also addressed Rule 6.11. Under Rule 6.11(1)(f), evidence from another action may be used in an application if advance notice is given and the Court grants permission. While the Court permitted the use of the Peterson Transcript in the present Application, it declined to make a blanket order for its use in all future applications. The Court emphasized that materiality and relevance must be assessed on a case-by-case basis.

In conclusion, the Court declared that the implied undertaking of confidentiality did not apply to the Peterson Transcript, no relief under Rule 5.33 was necessary, and permission to use the transcript under Rule 6.11 was limited to the current application only.