McAllister v. Calgary (City), 2012 ABCA 346

• Judge: Paperny, Slatter and Brooker, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 11, 2012
• Citations: 2012 ABCA 346;(2012), 539 A.R. 124

McAllister v. Calgary (2012), 539 A.R. 124; 561 W.A.C. 124 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. NO.098

Kyle Lyndon McAllister (respondent/plaintiff) v. The City of Calgary (appellant/defendant)

(1101-0062-AC; 2012 ABCA 346)

Indexed As: McAllister v. Calgary (City)

Alberta Court of Appeal

Paperny, Slatter and Brooker, JJ.A.

November 21, 2012.

Summary:

McAllister was assaulted and injured at a C-Train station in the City of Calgary. Members of the Calgary Police Service investigated the incident. McAllister sued the City for breach of statutory duty, negligence and bad faith for damages arising from his injuries, which he said resulted from the City's failure to implement adequate security measures at C-Train stations. McAllister sought disclosure from the City of records that were in the possession of the police, including investigation reports from the night of the assault. The City refused disclosure on the basis that they were not the City's records. At issue was whether police records were under the "control" of the City such that they had to be disclosed pursuant to rule 5.6 of the Alberta Rules of Court. In a 1977 decision in Hunter v. Eck et al., the Alberta Court of Appeal held that police records were in the possession and under the power of the municipality that established the police service, as required by the disclosure rules at the time. A Master considered himself bound by Hunter and ordered the City to request the records from the police and, failing receipt, to bring an application under rule 209 (now rule 5.13) to obtain the records. The City appealed. A Justice of the Court of Queen's Bench considered herself bound by Hunter and dismissed the City's appeal. The City appealed and was granted leave to have the decision in Hunter reconsidered.

The Alberta Court of Appeal allowed the appeal. The court overturned the decision in Hunter and held that records in the possession of a municipality's police service were not under the control of the municipality for purposes of document disclosure under rule 5.6. However, there was nothing to prevent any party to litigation from applying to obtain records from a non-party by way of an application under rule 5.13.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in the possession, power or control of a party - Rule 5.6 of the current Alberta Rules of Court required a party to disclose all relevant and material records that "are or have been under the party's control" - The language under the previous discovery rules was somewhat different, requiring disclosure of records in a party's "possession, custody or power" - Under the old rules, Alberta courts had held that for a party to have power over a record being held by a non-party, the party had to have a legal right to access the record or to get copies of it from the non-party - The Alberta Court of Appeal stated that "this remains the test for disclosure in Alberta. The simplification of the language to 'control' in the current Rules of Court does not alter the test. There is no substantive difference in meaning between the two phrases. I would add that the right to access the record must be specific to the party from whom disclosure is sought; merely having the ability to bring an application for third party disclosure under the Rules of Court, an application equally available to any party to the litigation, is not sufficient to indicate control. Nor is it enough, as the respondent suggests, that the party may be able to request the record from the non-party because of an existing relationship between them. If the requesting party does not have a corresponding ability to enforce compliance with the request, he or she does not have 'control' over the record" - See paragraphs 6 to 7.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in the possession, power or control of a party - McAllister was assaulted and injured at a C-Train station in the City of Calgary - Members of the Calgary Police Service investigated the incident - McAllister sued the City for breach of statutory duty, negligence and bad faith for damages arising from his injuries, which he said resulted from the City's failure to implement adequate security measures at C-Train stations - McAllister sought disclosure from the City of records that were in the possession of the police, including investigation reports from the night of the assault - The City refused disclosure on the basis that they were not the City's records - At issue was whether police records were under the "control" of the City such that they had to be disclosed pursuant to rule 5.6 of the Alberta Rules of Court - In a 1977 decision in Hunter v. Eck et al., the Alberta Court of Appeal held that police records were in the possession and under the power of the municipality that established the police service, as required by the disclosure rules at the time - The Alberta Court of Appeal overturned the decision in Hunter and held that records in the possession of a municipality's police service were not under the control of the municipality for purposes of document disclosure under rule 5.6 - The broad principle set out in Hunter was inconsistent with the intention of the legislature in creating distance between municipal councils and the police services they were required to establish - This interpretation was also consistent with the broader concern in the law to protect the privacy of records, as enshrined in both federal and provincial privacy legislation.

Practice - Topic 4611

Discovery - Production of documents by nonparties - Police records (incl. police commission) - [See second Practice - Topic 4572 ].

Word and Phrases

Control - The Alberta Court of Appeal considered the meaning of the word "control" in rule 5.6 of the discovery rules in the Alberta Rules of Court (2010) - See paragraphs 6 to 7.

Cases Noticed:

Hunter v. Eck, Brown, Poss, Doe and Edmonton (City) (1977), 8 A.R. 508 (C.A.), affing. (1976), 75 D.L.R.(3d) 101 (Q.B.), overturned [para. 3].

Brown v. Nguyen (2006), 405 A.R. 373; 2006 ABQB 783 (Master), affd. (2007), 405 A.R. 382; 2007 ABQB 270, refd to. [para. 6].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 5.6 [para. 2]; rule 5.13 [para. 3].

Authors and Works Noticed:

Bray on Discovery (1885), p. 135 [para. 12].

Ceyssens, Paul, Legal Aspects of Policing (1994) (Looseleaf), Update 15 - September 2002, p. 4-13 [para. 27].

Counsel:

T.R. Mcdonald, for the respondent;

D.J. Lewis, for the appellant.

This appeal was heard on October 11, 2012, before Paperny, Slatter and Brooker, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved of the Court of Appeal were delivered by Paperny, J.A., and were filed on November 21, 2012.