Jackson v. D.A. et al., 2005 ABQB 824

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 21, 2005
• Citations: 2005 ABQB 824;(2005), 385 A.R. 292 (QB);2005 ABQB 702

Jackson v. D.A. (2005), 385 A.R. 292 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.033

Erin Jackson (plaintiff) v. D.A., R.H.A., E.A.A., D.A.S. and Josef Lloyd Parragh (defendants) (0303 23694)

Stacy Parragh (plaintiff) v. D.E.A., R.H.A., E.A.A., D.A.S. and Josef Lloyd Parragh (defendants)

(0303 23834; 2005 ABQB 702; 2005 ABQB 824)

Indexed As: Jackson v. D.A. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

September 30, 2005 and November 2, 2005.

Summary:

A motor vehicle accident resulted in quasi-criminal charges being laid against D.A. and D.S. Disclosure was provided by the Crown through their lawyers. Their lawyers signed an undertaking which prevented them from further disclosing or disseminating or otherwise using the information. Two plaintiffs sued D.A., D.S. and others for damages arising out of the accident. The lawyers representing D.A. and D.S. in the civil proceedings each received the documents that were provided by the Crown in the quasi-criminal proceedings. The plaintiffs requested access to the documents. When disclosure was not forthcoming, the plaintiffs each launched a special chambers application. After the Crown was given notice of the applications, it consented to the release of the information. The plaintiffs applied for costs for the work which they had to pay their lawyers to obtain the disclosure.

The Alberta Court of Queen's Bench awarded the plaintiffs their costs of the applications.

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.

Barristers and Solicitors - Topic 961

Duty to court - Undertakings - General - The Alberta Court of Queen's Bench stated that "Even when a lawyer does not intend to assume personal responsibility for an undertaking, 'it is the duty of a solicitor to do everything possible to induce his client to honour it'" - See paragraph 40.

Barristers and Solicitors - Topic 963

Duty to court - Undertakings - Respecting collateral use of discovery - The Alberta Court of Queen's Bench stated that "If a lawyer gives an undertaking not to use Crown disclosure in other proceedings, the lawyer will be bound by that promise. ... In Canada also, courts have emphasized the importance of lawyers' promises. Although a court may decline to intervene in a dispute between lawyers concerning satisfaction of an undertaking, it will 'require whenever possible that undertakings be carried out as strictly and honourably as though they were embodied in orders of the Court, the purpose being to ensure honest conduct on the part of its officers'" - See paragraph 33.

Barristers and Solicitors - Topic 963

Duty to court - Undertakings - Respecting collateral use of discovery - Prosecutors in Alberta had a practice of making disclosure conditional upon a promise that included a statement to the effect that the recipient of the disclosure would not use that disclosure in other proceedings - The Alberta Court of Queen's Bench stated that "When discussing the explicit undertaking that is apparently always requested by the Crown and always given by defence in order to obtain disclosure in criminal cases, it may be important to correctly characterize the promise that is given by a lawyer to another lawyer. Indeed, if the Crown intend to extract an effective protection for the disclosure that it passes along, the Crown may have to consider whether it should, instead of asking for undertakings, insist on trust conditions, because an undertaking may not bind the accused who is represented and will not bind an accused who is unrepresented." - See paragraph 34.

Barristers and Solicitors - Topic 4006

Relations with other lawyers - General - Solicitors' trust conditions - [See second Barristers and Solicitors - Topic 963 ].

Barristers and Solicitors - Topic 4149

Relations with other lawyers - Undertakings - Enforcement - [See both Barristers and Solicitors - Topic 963 ].

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - The Alberta Court of Queen's Bench stated that the law was not settled in Alberta respecting the existence of an implied undertaking not to use disclosure of evidence received from the Crown in other proceedings - See paragraphs 44 to 47.

Practice - Topic 4559

Discovery - Production and inspection of documents - General - Cost of production - A motor vehicle accident resulted in quasi-criminal charges being laid against D.A. and D.S. - Disclosure was provided by the Crown - Each defence counsel signed an undertaking which prevented them from further disclosing or disseminating or otherwise using the information - Plaintiffs sued D.A., D.S. and others for damages for injuries arising out of the accident - D.A.'s and D.S.'s civil lawyers received the documents that were subject to the undertaking - The plaintiffs applied for access to the documents - The Crown received notice of the applications and waived the undertaking - The Alberta Court of Queen's Bench awarded the plaintiffs their costs of the applications - D.S. failed to record the disclosure in his affidavit of records - D.A. recorded the disclosure, but not the grounds for his objection to producing it - The inadequate affidavits of record caused the plaintiffs expense by delaying their ability to focus on the reason for non-disclosure and to attempt to remedy that problem directly with the Crown - Had D.A.'s and D.S.'s civil lawyers sought a waiver of the undertakings upon receipt of the documents, the plaintiffs would have avoided the preparation costs of the applications - See paragraphs 48 to 57.

Practice - Topic 4632

Discovery - Affidavit or list of documents - What documents must be listed - [See Practice - Topic 4559 ].

Practice - Topic 4632

Discovery - Affidavit or list of documents - What documents must be listed - The Alberta Court of Queen's Bench stated that "It is beyond question that a party to a civil proceeding who has received documents from the Crown during related criminal proceedings, which documents are material to the issues in the civil proceedings, is obliged to disclose the existence of those documents in their affidavit of records. If that party believes that it is under some compulsion not to produce the records to the party opposite, that party must comply with the provisions of R. 187.1(2)(b) by stating the ground for its objection." - See paragraph 28.

Practice - Topic 4638

Discovery - Affidavit or list of documents - Sufficiency of statement of grounds of privilege - [See Practice - Topic 4559 and second Practice - Topic 4632 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - The Alberta Court of Queen's Bench stated that "Costs are awarded to promote reasonable settlements and to punish unreasonable conduct. Therefore, if a litigant is unable in law to consent to a request from a party opposite and the court must make the determination, then going to court is an unfortunate, but unavoidable, cost of litigation and the applicant must pay the costs of the application. If a litigant's consent would not resolve the contested issue, then that litigant should not pay costs. If the law is so unsettled that it would be unreasonable to expect a litigant to do anything but contest the application, then costs should not be awarded." - See paragraph 29.

Cases Noticed:

R. v. Little (R.J.) (2001), 285 A.R. 85 (Prov. Ct.), refd to. [paras. 3, 9].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277; 83 Alta. L.R.(2d) 193; [1992] 1 W.W.R. 97; 18 C.R.R.(2d) 210; 1991 CarswellAlta 192, refd to. [para. 10].

Van Straten v. Oblitas, [2005] A.R. Uned. 370; 2005 CarswellAlta 499; 2005 ABQB 285, refd to. [para. 10].

Harding (L.M.) Medical Supplies Ltd. et al. v. Patriquen (2005), 232 N.S.R.(2d) 111; 737 A.P.R. 111; 2005 NSCA 48, refd to. [para. 10].

Hwang v. Saskatoon (City) (2003), 243 Sask.R. 10; 42 C.P.C.(5th) 111; 2003 SKQB 395, refd to. [para. 10].

Lang v. Crowe et al. (2000), 131 O.A.C. 26 (Div. Ct.), refd to. [para. 10].

St. Jean v. Western Union Insurance Co. (2003), 347 A.R. 249; 48 C.P.C.(5th) 260; 2003 ABQB 928, refd to. [para. 10].

D.P. v. Wagg (2004), 187 O.A.C. 26; 239 D.L.R.(4th) 501 (C.A.), refd to. [paras. 3, 10].

Bourgeois (Yvette) et al. v. Bolen (Matthew Alexander) et al., [2004] 8 W.W.R. 297; 351 A.R. 244; 44 C.P.C.(5th) 153; 26 Alta. L.R.(4th) 178; 49 M.V.R.(4th) 272; 115 C.R.R.(2d) 336; 2004 CarswellAlta 71; [2004] A.W.L.D. 223; 2004 ABQB 35, refd to. [para. 10].

Lastiwka v. TD Waterhouse Investor Services (Canada) Inc., [2004] A.R. Uned. 666; 2004 ABQB 740, refd to. [para. 10].

Cook v. Washuta (1985), 11 O.A.C. 171; 22 D.L.R.(4th) 1; 5 C.P.C.(2d) 81; 52 O.R.(2d) 289 (C.A.), leave to appeal denied (1986), 68 N.R. 400; 18 O.A.C. 80 (S.C.C.), refd to. [para. 10].

Cook v. Ip - see Cook v. Washuta.

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81; 143 D.L.R.(4th) 1; 29 B.C.L.R.(3d) 133; [1997] 4 W.W.R. 1; 4 C.R.(5th) 220; 34 C.C.L.T.(2d) 1; 42 C.R.R.(2d) 37; 8 C.P.C.(4th) 1; 1997 CarswellBC 100, refd to. [para. 10].

Hedley et al. v. Air Canada et al. (1994), 23 C.P.C.(3d) 352 (Ont. Gen. Div.), refd to. [para. 10].

Fullowka v. Royal Oak Mines Inc., [1998] N.W.T.R. 42 (S.C.), refd to. [para. 10].

Omega Techno Ltd. v. East Central Gas Co-op Ltd. et al., [1979] A.J. No. 345 (C.A.), refd to. [para. 10].

Barry v. Maertens-Poole (1992), 4 Alta. L.R.(3d) 330 (Q.B.), refd to. [para. 10].

K.F. et al. v. White (2001), 142 O.A.C. 116; 53 O.R.(3d) 391; 3 C.P.C.(5th) 189; 198 D.L.R.(4th) 541 (C.A.), refd to. [para. 10].

Publicover et al. v. Ontario (Minister of Transportation) et al., [2005] O.T.C. 147 (Sup. Ct.), refd to. [para. 10].

Cassidy v. Hawcroft, [2000] E.W.J. No. 4317 (C.A.), refd to. [para. 11].

Tejendrasingh v. Metons, [1997] EMLR 597 (C.A.), refd to. [para. 11].

Carling Development Inc. et al. v. Aurora River Tower Inc. et al. (2005), 371 A.R. 152; 354 W.A.C. 152 (C.A.), refd to. [paras. 7, 12].

Preston Borough Council v. McGrath, [2000] E.W.J. No. 2605 (C.A.), refd to. [para. 13].

Taylor et al. v. Director of the Serious Fraud Office et al., [1998] 4 All E.R. 801; 233 N.R. 172 (H.L.), refd to. [para. 45].

Authors and Works Noticed:

Martin Committee Report - see Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of.

Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report) (1993), generally [para. 14].

Orkin, Mark M., Legal Ethics, A Study of Professional Conduct (1957), pp. 137 [para. 33]; 138 [para. 40].

Counsel:

Gary B. Romanchuk (Ogilvie LLP), for the plaintiff, Jackson;

Bruce King, for the plaintiff, Parragh;

Dalal Mouallem (Duncan & Craig LLP), for the defendants, D.S. and Parragh;

Harvey Philip Hair (Cleall Pahl), for the A. defendants;

Martin Elton, Q.C., for the Crown;

A.S. Attia (Attia Reeves), for the defendant, D.A., in the quasi-criminal proceedings;

E.J. O'Neill (Beresh Depoe Cunningham), for the defendant, D.S., in the quasi-criminal proceedings.

Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard these matters on June 21, 2005, and November 2, 2005, and delivered the following judgments on September 30 and November 2, 2005.