Lastiwka et al. v. Bray et al., (2006) 405 A.R. 392 (QB)

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 14, 2006
• Citations: (2006), 405 A.R. 392 (QB);2006 ABQB 935

Lastiwka v. Bray (2006), 405 A.R. 392 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.024

George Lastiwka and Focal Investment Management Ltd. (plaintiffs) v. Terry Bray, Kenneth A. Bray, Jason Bray, Hilda Bray, Christopher Bray, Edna Bray, Research Capital Corporation, Tri-Land Securities Ltd., Tri-Land Securities (1999) Ltd., CT Securities Inc. and Andy Hermanson (defendants)

(9903 11731; 2006 ABQB 935)

Indexed As: Lastiwka et al. v. Bray et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

December 21, 2006.

Summary:

The plaintiffs sued the defendants in 1999. Six of the 11 defendants (the Bray defendants) moved to strike the action. In 2000, the plaintiffs commenced a second action against one of the other defendants. In 2005, the parties in the second action entered a binding judicial dispute resolution (JDR) agreement. They agreed that the Bray defendants would receive a copy of the decision. Watson, J., issued a written decision, including a confidentiality order and publication ban. The Bray defendants received a copy. They sought leave to refer the judge who heard their application to strike to the JDR decision.

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

Evidence - Topic 3008

Documentary evidence - General - Confidentiality orders - Variation of - The plaintiffs sued the defendants - Six of the 11 defendants (the Bray defendants) moved to strike the action - The plaintiffs commenced a second action against one of the other defendants - The parties in the second action entered a binding judicial dispute resolution (JDR) agreement - They agreed that the Bray defendants would receive a copy of the decision - Watson, J., issued a written decision, including a confidentiality order and publication ban - The Bray defendants received a copy - They sought leave to refer the judge who heard their application to strike to the JDR decision - The Alberta Court of Queen's Bench allowed the application - In ordinary JDR, confidentiality was obviously necessary as the parties might carry on to trial - However, in a binding JDR process, the need for confidentiality was not obvious - Further, it was questionable whether confidentiality should be available without a judicial determination on public notice - Here, the parties had not agreed to confidentiality and the order was, by its own terms, subject to further order of the court - Given that and the fact that the normal justification for confidentiality in JDR proceedings did not arise, it was appropriate to grant the leave requested.

Evidence - Topic 3360

Documentary evidence - Judicial proceedings - Reasons for judgment from prior trial or proceedings - [See Evidence - Topic 3008 ].

Practice - Topic 5269.1

Trials - General - Judicial or alternate dispute resolution - General - [See Evidence - Topic 3008 ].

Cases Noticed:

Abernethy (J.W.) Management & Consulting Ltd. et al. v. 705589 Alberta Ltd. et al., [2005] 9 W.W.R. 453; 367 A.R. 38; 346 W.A.C. 38 (C.A.), consd. [para. 13].

Authors and Works Noticed:

Alberta Court of Queen's Bench, Guidelines for Judicial Dispute Resolution, Consolidated Notices to the Profession, Alberta Rules of Court, p. 1.0.19, para. 8 [para. 12].

Counsel:

Ken Fitz (McLennan Ross), for the plaintiffs;

Norman D. Anderson (Shea Nerland Calnan), for the defendants, Terry Bray, Kenneth A. Bray, Jason Bray, Hilda Bray, Christopher Bray, Tri-Land Securities Ltd., and Tri-Land Securities (1999) Ltd.;

The remaining defendants did not participate.

This application was heard on November 14, 2006, by Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on December 21, 2006.