Thomas v. Elliott, (1998) 221 A.R. 48 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 31, 1998
• Citations: (1998), 221 A.R. 48 (QBM)

Thomas v. Elliott (1998), 221 A.R. 48 (QBM)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. JL.106

Joseph Thomas and Aleyamma Thomas (plaintiffs) v. Randy Orlando Todd Elliott (defendant)

(Action No. 9603-25822)

Indexed As: Thomas v. Elliott

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

March 31, 1998.

Summary:

The plaintiffs sued the defendant following a motor vehicle accident. During exami­nation for discovery, the defendant's counsel gave an undertaking to produce a statement made to police concerning the accident. The defendant subsequently applied to withdraw the undertaking.

A Master of the Alberta Court of Queen's Bench dismissed the application.

Barristers and Solicitors - Topic 4153

Relations with other lawyers - Undertak­ings - Withdrawal - The plaintiffs sued the defendant following a motor vehicle acci­dent - During examination for discovery, the defendant's counsel gave an undertak­ing to produce a statement made to police concerning the accident - The defendant subsequently applied to withdraw the undertaking - A Master of the Alberta Court of Queen's Bench dismissed the application - To be relieved of an under­taking one had to show that the undertak­ing was given inadvertently (i.e., uninten­tionally), that the undertaking should not have been given and that the other side had not been prejudiced (or make an offer to repair the prejudice) - Here the test was not met where all the defendant's counsel could say was that he misconceived the law on whether the accident statement was privileged.

Cases Noticed:

Alberta Association of Psychologists v. Schepanovich (1991), 45 C.P.C.(2d) 108 (Alta. C.A.), refd to. [para. 5].

Robinson v. MacWilliams and Levesque (1997), 197 A.R. 394 (Q.B.), refd to. [para. 6].

Uvanile v. Wawanesa Mutual Insurance Co. (1984), 44 C.P.C. 110 (Ont. H.C.), refd to. [para. 10].

Counsel:

W.R. Shaw (Shaw & Tamke), for the plaintiffs;

G.W. Jaycock (Parlee McLaws), for the defendant.

This application was heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following judgment on March 31, 1998.