TERRIGNO v FOX, 2023 ABKB 89
5.11: Order for record to be produced
5.16: Undisclosed records not to be used without permission
5.33: Confidentiality and use of information
5.6: Form and contents of affidavit of records
5.8: Records for which there is an objection to produce
6.14: Appeal from master’s judgment or order
The Appellant appealed an Applications Judge’s Decision which prohibited the Appellant from using an audio recording (the “Audio Recording”) in support of a Summary Judgment Application and which found the Applicant in breach of Rule 5.33 (the “Decision on Appeal”).
The Court also considered whether three Affidavits which the Appellant sought to introduce (the “New Affidavit Evidence”) were relevant and material in accordance with Rule 6.14(3). With respect to the New Affidavit Evidence, the Court noted that one Affidavit was an attempt to introduce new argument that the Appellant did not see fit to make before the Applications Judge and found that it was not relevant and material. Justice Jones determined that the two remaining Affidavits had a measure of relevance and materiality, allowing them to be admissible.
With respect to the Audio Recording, the Court noted that Rule 5.6 requires that all records be disclosed, regardless of whether the Party producing the record objects to producing them. Further, per Rule 5.8, the Appellant was required to not only state that he objected to producing the Audio Recording but not how it fit within the claimed objection. More specifically, because the Appellant claimed litigation privilege over the Audio Recording, he was required to state that the Audio Recording was created when this Action existed or was contemplated. The Court found that the Appellant failed to comply with the requirements and had breached the requirement to serve a satisfactory Affidavit of Records.
The Court proceeded to consider relief in favour of the Appellant despite his non-compliance, pursuant to Rule 5.16. The Court set out the four-part test applicable to Rule 5.16 as follows: (1) the other Party would suffer prejudice if the use of the record was permitted; (2) there was a reasonable explanation for the non-disclosing Party’s failure to disclose the record; (3) excluding the record would prevent the determination of the issue on the merits; and (4) in the circumstances of the case, the ends of justice require that the record be admitted. The Court did note that the reasonability aspect should be viewed as the first line of the inquiry, which would suggest that if the Court finds that there is no reasonable explanation for non-disclosure, it need not consider the remaining requirements for the four-part test.
The Court found that the Appellant had no reasonable explanation for non-compliance, specifically finding that: (1) the omission from the Amended Affidavit of Records was not an innocent oversight; (2) the lack of fulsome disclosure of the Audio Recording was not justified because he considered it to be privileged; and (3) being a self-represented litigant was not a reasonable excuse for non-compliance with the Rules. In this particular case, the Court noted that the Appellant had a law degree and experience as a litigator.
The Court found that the Respondent would suffer prejudice if the Audio Recording was admitted into evidence, noting that Rule 5.8(2) imposes an obligation on the disclosing Party to provide sufficient information to allow the Court to determine that each record in respect of which there is an objection to produce is disclosed in the Affidavit of Records. Further, there must be a sufficient description to allow the receiving Party to decide whether to make an Application under Rule 5.11 to substantiate the claim of privilege.
The Court found that although excluding the Audio Recording from further proceedings could make it more difficult for the Appellant to prove his case it would not be a bar for determination on the merits, taking into consideration that both Parties would still be able to give viva voce evidence.
The Court additionally found that it would not be unjust to exclude the Audio Recording, noting the object and purpose of the disclosure provisions found in Part 5 of the Rules, the implications for non-disclosure on the Respondent’s litigation strategy, and the fact the Appellant had allegedly learned about the deficiencies once he had engaged counsel.
The Court found that the Appellant’s disclosure of the Respondent’s Questioning transcript to the Calgary Police and the RCMP constituted a breach of the implied undertaking rule set out in Rule 5.33. The Court found that Rule 5.33 was breached and that the breach was not extinguished when the Appellant exhibited the transcript to an Affidavit filed in support of his Summary Judgment Application.
The Court accordingly dismissed the Appeal.View CanLII Details