A.B. v. C.D., (2008) 429 A.R. 89 (CA)

• Judge: Fraser, C.J.A., Paperny and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 04, 2008
• Citations: (2008), 429 A.R. 89 (CA);2008 ABCA 51

A.B. v. C.D. (2008), 429 A.R. 89 (CA);

      421 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.157

A.B. (appellant/plaintiff) v. C.D. (respondent/defendant)

(0703-0246-AC; 2008 ABCA 51)

Indexed As: A.B. v. C.D.

Alberta Court of Appeal

Fraser, C.J.A., Paperny and Watson, JJ.A.

February 12, 2008.

Summary:

The plaintiff sued the defendant, its former chief executive officer, alleging breaches of fiduciary duty, breach of trust and fraud. The plaintiff brought an ex parte application for an equitable bill of discovery in the nature of a Norwich order, which would require several financial institutions to provide to the plaintiff all of the defendant's banking records and to also provide the banking records of nine other named individuals and persons who were not parties to the action.

The Alberta Court of Queen's Bench, in a decision reported at 426 A.R. 352, dismissed the application. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Equity - Topic 1142

Equitable relief - Practice - Bill of discovery - The plaintiff sued the defendant, its former chief executive officer, alleging breaches of fiduciary duty, breach of trust and fraud - The plaintiff brought an ex parte application for an equitable bill of discovery in the nature of a Norwich order, which would require several financial institutions to provide to the plaintiff all of the defendant's banking records and to also provide the banking records of nine other named individuals and persons who were not parties to the action - A chambers judge dismissed the application - The Alberta Court of Appeal affirmed the decision - The chambers judge's conclusion that granting the Norwich order was not in the interests of justice was clearly supportable on the facts - Recourse to the normal discovery process was not shown to be an inadequate remedy.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - [See Equity - Topic 1142 ].

Cases Noticed:

Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), refd to. [para. 2].

Webster-Tweel v. Royal Trust Corp. of Canada et al., [2008] A.R. Uned. 6; 2008 ABCA 21, refd to. [para. 10].

Kuffner v. Manitoba Public Insurance Corp. (2005), 376 A.R. 86; 360 W.A.C. 86; 2005 ABCA 440, refd to. [para. 10].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 10].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 10].

Glaxo Wellcome plc v. Minister of National Revenue, [1998] 4 F.C. 439; 228 N.R. 164; 162 D.L.R.(4th) 433 (F.C.A.), refd to. [para. 12].

Design Group Staffing Inc. v. Fierlbeck (2006), 400 A.R. 176 (Q.B.), refd to. [para. 15].

British Steel Corp. v. Granada Television Ltd., [1981] 1 All E.R. 417, refd to. [para. 15].

Bankers Trust Co. v. Shapira, [1980] 3 All E.R. 353, refd to. [para. 15].

Ashworth Hospital Authority v. MNG Ltd., [2002] W.L.R. 2033 (H.L.), refd to. [para. 16].

Counsel:

D.J. King, for the appellant;

C.D. was not represented.

This appeal was heard on February 4, 2008, before Fraser, C.J.A., Paperny and Watson, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was filed on February 12, 2008.