A.B. v. C.D., (2007) 426 A.R. 352 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 15, 2007
• Citations: (2007), 426 A.R. 352 (QB);2007 ABQB 516

A.B. v. C.D. (2007), 426 A.R. 352 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AU.051

A.B. (plaintiff) v. C.D. (defendant)

(0503 01572; 2007 ABQB 516)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

August 15, 2007.

Summary:

The plaintiff sued its former chief executive officer (the defendant) alleging breaches of fiduciary duty, breach of trust and fraud. On an ex parte basis, the plaintiff applied for a Norwich-type order (equitable discovery) requiring five named financial institutions to provide to the plaintiff all of the banking records held with each institution by the defendant and by nine other named individuals and persons who were not parties to these proceedings.

The Alberta Court of Queen's Bench dismissed the application.

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 its former chief executive officer (the defendant) alleging breaches of fiduciary duty, breach of trust and fraud - On an ex parte basis, the plaintiff applied for a Norwich-type order (equitable discovery) requiring five named financial institutions to provide to the plaintiff all of the banking records held with each institution by the defendant and by nine other named individuals and persons who were not parties to these proceedings - The Alberta Court of Queen's Bench dismissed the application - The plaintiff had not met the test: it had not provided evidence sufficient to raise a valid claim against any persons other than persons who were already known to the plaintiff and with respect to whom the plaintiff was in a position to commence, or already had commenced, legal proceedings; it had not established that the financial institutions which were the immediate subjects of this application, were somehow involved in, or somehow participated in, the acts of which the plaintiff complained, and therefore more than mere witnesses to any alleged fraud; it had not established that the financial institutions were the only practicable source of the information it was requesting; it could, and presumably did, indemnify the financial institutions for both the costs which they would incur and any damages sustained, although such damages were unlikely to be incurred in complying with the terms of this order; and, the interests of justice do not favour the granting of the order - The type of order requested was exceptional and the court should only exercise its discretion to grant such an order when it was satisfied that it was necessary to do so.

Practice - Topic 4604

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

Cases Noticed:

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.), leave to appeal refused (1998), 236 N.R. 388 (S.C.C.), consd. [para. 8].

Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), refd to. [para. 8].

Alberta (Treasury Branches) v. Leahy et al. (2000), 270 A.R. 1; 2000 ABQB 575, affd. (2002), 303 A.R. 63; 273 W.A.C. 63; 2002 CarswellAlta 578; 2002 ABCA 101, leave to appeal refused [2002] S.C.C.A. No. 235, refd to. [para. 8].

Blindman Livestock Feeder Co-Op Ltd. v. Snyder et al., [2005] A.R. Uned. 749; 2005 ABQB 689, refd to. [para. 8].

Straka v. Humber River Regional Hospital et al. (2000), 137 O.A.C. 316; 51 O.R.(3d) 1 (C.A.), refd to. [para. 8].

Nikitin & Ors v. Butler Llp & Ors, [2007] EWHC 173 (Q.B.), refd to. [para. 9].

AXA Equity & Life Assurance plc v. National Westminster Bank plc, [1998] E.W.J. No. 487 (C.A.), refd to. [para. 9].

Westmills Canada Inc. v. Harvey & Pulton Warehouse Carpet Sales Ltd. (1989), 94 A.R. 57 (C.A.), refd to. [para. 9].

Ashworth Security Hospital v. MGN Ltd., [2002] UKHL 29, refd to. [para. 9].

National Bank of Canada et al. v. Mann et al. (1999), 102 O.T.C. 32 (Sup. Ct. Master), refd to. [para. 9].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203, refd to. [para. 9].

BMG Canada Inc. et al. v. John Doe et al. (2005), 334 N.R. 268 (F.C.A.), refd to. [para. 9].

Arrow Nominees Inc. v. Blackledge, [2002] EWCA Civ. 378, refd to. [para. 9].

Authors and Works Noticed:

Block, Marion, and Gilborn, Sealed Ex parte Norwich Orders: Safeguarding against abuse of the Pre-action disclosure remedy, Annual Review of Civil Litigation, pp. 224 to 257 [para. 9].

Counsel:

Derek J. King (Brownlee LLP), for the applicant.

This application was heard on October 24 and 30, 2006, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on August 15, 2007.