The Applicants sought an Order to ban the Respondent from making use of a secret recording, as well as a costs sanction for breaching an implied undertaking of confidentiality.

While at the Calgary Courts Centre for a separate foreclosure application involving both parties, the Respondent secretly recorded a heated conversation with one of the Applicants. The Applicant complained to the Calgary Police Service about the conversation, wrote letters to the Court and published the Respondent’s statements on Facebook. The Respondent sued, alleging that the letters and comments were defamatory.

The Respondent did not disclose that he was in possession of the recording in his Affidavit of Records. The Respondent had also wanted to file the transcript of the Applicant’s Questioning, but the Applicants refused. In response, the Respondent filed an Application for Summary Judgment, and included the transcript of Questioning as an exhibit to his supporting Affidavit. The Respondent also provided a copy of the transcript to the RCMP, alleging that the Applicant committed perjury.

Master Prowse found that the Respondent’s failure to produce an accurate Affidavit of Records referencing the secret recording was grounds for striking his Statement of Claim pursuant to Rule 3.68(4)(b)(i). He found that the Respondent deliberately withheld the recording for the collateral purpose of trying to prove that the Applicants committed perjury. However, the Applicants had not asked for the Action to be struck and Master Prowse did not order so.

Master Prowse held that the Respondent’s conduct was a contravention of the Rules of Court and banned the Respondent from making use of the recording under Rule 1.5(4)(c).

Master Prowse also held that filing the transcript of Questioning, and providing a copy to the RCMP, was contrary to the implied undertaking of confidentiality referred to in Rule 5.33. The Respondent did not comply with Rule 5.32, which only allows a party to read admissions from discovery into the record at an application, proceeding or trial. Instead, the Respondent submitted the entire transcript of Questioning. Master Prowse imposed a costs award as a sanction for the breach of Rules 5.32 and 5.33, in the amount of $5,000.00.