Alberta (Treasury Branches) v. Leahy et al., (2002) 303 A.R. 63 (CA)

• Judge: Picard, Hunt and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 16, 2002
• Citations: (2002), 303 A.R. 63 (CA);2002 ABCA 101

Alta. v. Leahy (2002), 303 A.R. 63 (CA);

    273 W.A.C. 63

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MY.002

Alberta Treasury Branches (respondent/plaintiff/defendant by counterclaim) v. Nader Ghermezian, Raphael Ghermezian, Bahman Ghermezian, Eskander Ghermezian, 273905 Alberta Ltd., Howard Anson, Mavis Halliday, 218703 Alberta Ltd., 579511 Alberta Ltd., 298936 Alberta Ltd., West Edmonton Mall Property Inc., WEM Holdings Inc., WEM Management Inc., Avista Financial Corporation, 298926 Alberta Ltd., ABNR Equities Corp., and Devcor Investment Corporation (WEM appellants/defendants by order) and Her Majesty the Queen in the Right of Alberta (respondent/defendant by counterclaim)

(Appeal No. 00-18980)

Alberta Treasury Branches (respondent/plaintiff/defendant by counterclaim) v. Elmer Leahy (appellant/defendant)

(Appeal No. 00-19000) (2002 ABCA 101)

Indexed As: Alberta (Treasury Branches) v. Leahy et al.

Alberta Court of Appeal

Picard, Hunt and Costigan, JJ.A.

April 16, 2002.

Summary:

Alberta Treasury Branches (ATB) commenced an action on March 11, 1997, alleging that the defendant Leahy, ATB's former vice superintendent, accepted a bribe from an ATB customer in exchange for granting loans. Between March 11, 1997 and May 13, 1998, the Alberta Court of Queen's Bench issued a series of ex parte orders, which, inter alia, permitted ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy. ATB brought an action against other defendants with respect to the alleged bribery. Leahy and certain other defendants applied to, inter alia, set aside the ex parte orders and exclude the use of information and evidence derived from them on the grounds that ATB 1) violated fundamental ex parte principles in obtaining the orders, 2) breached its implied undertaking to the court in its use of information obtained pursuant to the orders, and 3) breached the defendants' ss. 7 and 8 Charter rights. ATB cross-applied, inter alia, for confirmation of the ex parte orders and for a declaration that the information and evidence obtained could be used in these and related proceedings.

The Alberta Court of Queen's Bench, in a decision reported at 270 A.R. 1, dismissed the defendants' application and granted ATB's cross-application. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - ATB sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions (equitable discovery), in order to gain information respecting the source of monies in bank accounts controlled by Leahy - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders and suppress the evidence obtained thereby on the ground that ATB breached their s. 8 Charter rights - The Alberta Court of Queen's Bench held that the search was reasonable - The Alberta Court of Appeal dismissed an appeal.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders and suppress the evidence obtained thereby on the basis of, inter alia, Charter violations - The Alberta Court of Queen's Bench held that s. 7 of the Charter (right to life, liberty and security of the person) did not apply to any of the defendants, corporate or individual, in this civil action - The Alberta Court of Appeal dismissed an appeal.

Evidence - Topic 7533

Competency of evidence - Illegally obtained evidence - Exclusion of - General - ATB sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions (equitable discovery), in order to gain information respecting the source of monies in bank accounts controlled by Leahy - As a result, ATB sued other defendants - Certain defendants applied to set aside the ex parte orders on procedural grounds, inter alia, and suppress the evidence obtained thereby - The Alberta Court of Queen's Bench refused to set aside the orders - The court stated that even if it had set aside the orders, it would not have granted the defendants' requests to essentially "erase" the evidence - The Alberta Court of Appeal dismissed an appeal.

Practice - Topic 3059

Applications and motions - General - Duty of disclosure on ex parte application - Alberta Treasury Branches (ATB) sued Leahy, its former vice superintendent, alleging that he accepted a bribe from an ATB customer in exchange for granting loans - The court issued ex parte orders permitting ATB to trace funds and obtain production of documents from third party financial institutions, in order to gain information respecting the source of monies in bank accounts controlled by Leahy - ATB sued other defendants with respect to the alleged bribery - Certain defendants applied to set aside the ex parte orders - The Alberta Court of Queen's Bench found that there were some instances of nondisclosure by ATB in its applications for the ex parte orders, but they did not justify setting the orders aside - The court would still have made the ex parte orders if full disclosure had been made - The court was not intentionally misled - The Alberta Court of Appeal dismissed an appeal.

Practice - Topic 6254

Judgments and orders - Setting aside orders - Ex parte orders - [See Practice - Topic 3059 ].

Counsel:

E.D.D. Tavender, Q.C., J.T. Prowse, H.L. Treacy and T.F. Mayson, for Alberta Treasury Branches;

C.D. O'Brien, Q.C., B.G. Nemetz, Q.C., and E.B. Mellett, for the WEM appellants;

F.R. Foran, Q.C., and M.A. Marion, for Alberta;

J.A. Weir, Q.C., and F.D. Cook, for Leahy.

This appeal was heard on April 16, 2002, by Picard, Hunt and Costigan, JJ.A., of the Alberta Court of Appeal. Costigan, J.A., delivered the following decision orally on the same date. It was filed on April 22, 2002.