PIIKANI NATION v RAYMOND JAMES LTD, 2026 ABKB 620

This decision addressed two privilege Applications arising from longstanding litigation between Piikani Nation and, among others, Liliana Kostic. In the underlying Action, Piikani Nation alleged that Kostic participated in a scheme to unlawfully transfer $23 million of its investments, while Kostic separately alleged that Piikani Nation terminated her services contract in bad faith.

A 2006 investigation report (the “Navigant Report”) formed part of the basis for Piikani Nation’s fraud allegations. Although privilege had been waived over two schedules, the remainder was protected by litigation privilege and a 2014 Court Order prohibiting its unauthorized use. Despite the Order, the Report was subsequently filed in several Court proceedings.

Kostic applied to unseal the Navigant Report, arguing that privilege had been waived through Piikani Nation’s pleadings, partial disclosure, and failure to protect the Report after it became publicly available. Piikani Nation maintained that unauthorized disclosure by others did not constitute waiver.

Separately, Piikani Nation applied for declarations preserving privilege over six records consisting of legal reports, memoranda and correspondence concerning the litigation (the “Six Records”). Kostic disputed the privilege claims, relying on the records' previous disclosure and use in other proceedings.

Justice Marion confirmed that the party alleging waiver bears the burden of establishing it. Privilege may be expressly waived or deemed waived where the privilege holder acts inconsistently with maintaining confidentiality. Unauthorized or wrongful use of privileged material by another person does not itself constitute waiver, although a privilege holder's failure to respond reasonably and expeditiously to unauthorized disclosure may support deemed waiver.

The Court held that Piikani Nation did not waive privilege over the Navigant Report through its pleadings. Kostic had placed Piikani Nation's state of mind in issue by alleging bad faith, and Piikani Nation's denial of bad faith did not amount to reliance on privileged material. The unauthorized use of the Navigant Report by Kostic and others similarly did not constitute waiver.

However, Marion J. held that Piikani Nation lost privilege over the Navigant Report through its own conduct and lack of diligence. Piikani Nation knew by 2021 that the Report had been filed in Federal Court but did not pursue a sealing Order. It subsequently publicly filed the Navigant Report in a Federal Court Judicial Review Application without seeking restricted access and, in 2024, consented to its inclusion in a Federal Court of Appeal record.

The Court rejected Piikani Nation's submission that filing the Navigant Report in the Federal Court Judicial Review was compelled. Justice Marion contrasted Judicial Review proceedings in Alberta under Rules 3.18, 3.19 and 3.22, where the tribunal under review must provide its complete record to the Court, with the Federal Court process, which appeared to be court-supervised but litigant-driven. The latter was more analogous to the extracts of key evidence process under Rules 14.27 to 14.29.

Turning to the Six Records, the Court considered their relevance and materiality in assessing whether prejudice from their exclusion supported deemed waiver. Only the 2010 assessment of Piikani Nation’s claims against Kostic (the “Befus Report”), was relevant and material to Kostic’s claim for aggravated or punitive damages arising from the termination of her contract. The Befus Report was protected by solicitor-client privilege, and any carelessness by Piikani Nation in protecting it did not warrant a finding of waiver, as the Nation had not failed to respond to a clear allegation of waiver and Kostic would suffer little prejudice from its exclusion. The Court found no utility in considering waiver over the remaining records.

The Court declared that privilege over the Navigant Report had been waived or lost and ordered it unsealed. Privilege over the Six Records had not been waived or lost, and those records were ordered sealed.