BURNS v OSUJI

This was an Appeal of an Applications Judge’s decision (the “Decision”) which dismissed two Applications to Strike the Plaintiffs’ Actions.

The underlying facts concerned the use by the Appellants’ lawyers of a video allegedly depicting the Respondents engaged in intimate acts (the “Video”) at an Early Intervention Case Conference (“EICC”) held during divorce proceedings. Each Respondent commenced an Action against the Appellants arising from the use and dissemination of the Video during the EICC.

The Appellants filed two Applications to strike or summarily dismiss the Respondents’ Actions pursuant to Rules 3.68 and 7.3, respectively. The Applications Judge dismissed the Applications to Strike and adjourned the Summary Dismissal Applications. The Appellants appealed the Decision, primarily on the basis that the Alberta Court of Appeal in Tuharsky v O’Chiese First Nation, 2025 ABCA 267 (“Tuharsky”) had overturned the lower-court case relied upon by the Applications Judge.

On Appeal, the Appellants argued that the Respondents commenced the Actions in breach of Rule 4.20, as the Video was disclosed and used solely for the purposes of the EICC, a without prejudice Court Proceeding. The Appellants also argued that they were not liable to the Respondents because absolute privilege applied to the use of the Video, and they did not owe a broad duty to the Respondents under the adversarial model.

Froese J. held that the EICC process, being a Court-mandated conference, does not qualify as a Judicial Dispute Resolution process within the meaning of Rule 4.18. As a result, Rule 4.20, which governs the confidentiality of Judicial Dispute Resolution processes, does not to apply to the EICC process and, by extension, to the Appeal. Justice Froese, adopting the Court of Appeal’s ruling in Tuharsky and, noting that the Video was shared in the context of the EICC proceeding, concluded that absolute privilege attached to the occasion. Accordingly, no further analysis of the content of the Video or the Appellants’ motives was required. Froese J. also found that the Appellants did not owe a duty to the Respondents, partly on the basis that the Respondents did not provide any legislation or jurisprudence that imposed a broad duty of privacy or confidentiality on lawyers in relation to opposing parties with adverse interests to their clients.

As a result of the foregoing, the Court allowed the Appeal, overturned the Decision, and struck the Respondents’ Actions in their entirety pursuant to Rule 3.68.