Kent v. Martin, 2011 ABQB 298

Court of Queen ’ s Bench of Alberta Citation: Kent v. Martin, 2011 ABQB 298 Date: 20110429 Docket: 0801 08414 Registry: Calgary Between: Arthur Kent Plaintiff - and - Don Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and Canwest Media Works Inc. Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________

PART I - The Application [ 1 ] Arthur Kent seeks an Order adding Kristine Robidoux, Q.C. (Robidoux) and John Does 1 to 10 as Defendants and amending the existing Amended Statement of Claim. He also seeks leave of the Court to file a formal complaint against Robidoux with the Law Society of Alberta. [ 2 ] Arthur Kent received the factual information which forms the basis for both applications in the pre-trial discovery process. It was disclosed under the protection of the implied undertaking rule.

PART II - The Facts [ 3 ] Arthur Kent is a well known journalist, turned provincial politician. He was a candidate for the Progressive Conservative Party of Alberta in the March 3, 2008 provincial election. [ 4 ] Don Martin was a columnist for the National Post and Calgary Herald newspapers. [ 5 ] It is alleged by Arthur Kent that Don Martin wrote, and the corporate Defendants published, a defamatory and false column, about Arthur Kent and his campaign. In particular, the February 12, 2008

article is alleged to have represented Arthur Kent as a candidate unworthy of public trust and public confidence, and unfit for elected office. This

article is said to be untrue and to have damaged Arthur Kent’s reputation. It is also argued that the writing of the

article was motivated by malice on the part of Don Martin. [ 6 ] Arthur Kent did not win the election on March 3, 2008. [ 7 ] In July 2008 Arthur Kent commenced this action. At the examination for discovery held in July, 2009, the Defendant Don Martin voluntarily disclosed one of his journalist sources for the impugned article: Kristine Robidoux, Q.C. Ms. Robidoux, Q.C. was Arthur Kent’s official Agent under the Election Act , R.S.A. 2000, c.E-1, and his legal counsel for the election. [ 8 ] Upon discovering that his official Agent and legal counsel was the main source of information upon which Don Martin’s

article was written, Arthur Kent commenced proceedings against Robidoux and John Does 1 to 10 in the fall of 2009. [ 9 ] That action was struck by Justice Belzil in July 2010, Kent v. Martin et al, 2010 ABQB 479 . The rationale for dismissing the action was the decision Juman v. Doucette, 2008 SCC 8 , where the Supreme Court of Canada confirmed the existence of the implied undertaking rule under which evidence, compelled by way of pre-trial discovery in civil litigation, can be used by the parties only for the purpose of the litigation in which it was obtained.

In concluding his decision Justice Belzil stated: 41 Significantly, it is clear that but for the breach of the implied undertaking, the action against Robidoux could not have been filed as Kent and his then counsel had no knowledge from any other source that Robidoux was Martin’s confidential informant. 42 In these circumstances the appropriate remedy for this flagrant breach of the implied undertaking is to dismiss the Robidoux Action in its entirety. 43 The application nunc pro tunc seeking relief from the implied undertaking in the Canwest Action is dismissed.

None of the evidence produced in the Canwest Action may be used for any purpose outside of that action. The Robidoux Action is struck out against Robidoux. Costs may be spoken to.

PART III - The Implied Undertaking Rule [ 10 ] In Juman v. Doucette , Justice Binnie articulated the implied undertaking rule at paragraph 4: Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.

[11] He then goes on to describe the two-pronged rationale for this rule. First, the privacy rights of a litigant are trumped by thepublic interest in getting at the truth. Therefore, rules such as 5.33 of the Alberta Rules of Court force a litigant to answer all relevantquestions posed at questioning and to disclose related documentation. The purpose of this part of the rationale is that the public interestin getting at the truth in civil litigation outweighs the parties’ privacy interest. However, the party is entitled to some protection. AsBinnie J. states: ...

The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unlesseventually revealed in the courtroom or disclosed by judicial order. (para. 25) [12] The second part of the rationale in support of the implied undertaking rule is that the litigant has some assurance that thedocuments and answers will not be used for a purpose ulterior to or outside the proceedings in which they were demanded.

This willtherefore encourage witnesses to provide a more complete and candid discovery. [13] Given the existence of the implied undertaking rule, and its rationale, a breach can be remedied by way of a wide spectrum ofoptions. The applicant in this case observed one remedy first hand, when Justice Belzil struck his stand alone claim against Robidoux. [14] The rule is not absolute. There are ways a party can ask for leave to use the information obtained.

At paragraphs 32, 35 and 36of Juman, the onus and criteria that an applicant seeking relief from the rule must meet is articulated: 32 An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance ofprobabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namelyprivacy and the efficient conduct of civil litigation.

In a case like the present, of course, there weighs heavily in the balance the right of asuspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself. The chambers judgetook the view (I think correctly) that in this case that factor was decisive.

In other cases the mix of competing values may be different.What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied bythe court in exceptional circumstances, the undertaking will not achieve its intended purpose. 35 The case law provides some guidance to the exercise of the court’s discretion.

For example, where discovery material in one actionis sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee isvirtually non-existent and leave will generally be granted. See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), (ON SC), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co.(1988), 1988 ABCA 282 , 90 A.R. 323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998, Scuzzy Creek Hydro & Power Inc. v.

Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.). 36 On the other hand, courts have generally not favoured attempts to use the discovered material for an extraneous purpose, or for anaction wholly unrelated to the purposes of the proceeding in which discovery was obtained in the absence of some compelling publicinterest. See, e.g. Lubrizol Corp. v. Imperial Oil Ltd. (1990), (FC), 33 C.P.R. (3d) 49 (F.C.T.D.) , at p. 51. InLivent Inc. v.

Drabinsky (2001), (ON SC), 53 O.R. (3d) 126 (S.C.J.), the court held that a non-party to the impliedundertaking could in unusual circumstances apply to have the undertaking varied, but that relief in such cases would virtually never begiven (p. 130). [15] In balancing the interests of the applicant seeking relief from the undertaking and those of the individual seeking theprotection of the undertaking, the court must be mindful that the undertaking should only be set aside in exceptional circumstances. Theexamples noted by the Supreme Court are simply examples, and none of those examples apply in this case.

PART IV - Discussion [16] Arthur Kent argues that his claim is an action founded on the tort of defamation. He asserts that all parties who contributed toor were sources for the writing and publication of the false and malicious content of the

article are joint tortfeasors. It was stated by DonMartin in his rather surprising disclosure that Robidoux was the main source of information for his February 12, 2008 article. ArthurKent argues that if this is the case, then Robidoux is one of the tortfeasors and the multiple breaches of fiduciary duty committed byRobidoux are simply ancillary steps on her journey to assist in the commission the tort of defamation.

[ 17 ] It is the position of Arthur Kent that his only alternative to claim against Robidoux is to amend his pleadings and add her and potentially others as new defendants. He tried to bring a separate action against her.

That action was, in my view, quite properly struck by Justice Belzil. [ 18 ] The issue for this court to decide is whether adding Robidoux and others along with amending the Amended Statement of Claim is an appropriate exception to the implied undertaking rule. [ 19 ] Counsel for the proposed defendant Robidoux acknowledges that the law in relation to amendment of pleadings and adding of parties has a relatively low threshold. As well, courts have historically exercised their discretion generously in favour of amendments.

In this case, counsel for Robidoux is asking the court for a more restrictive approach and one that denies the application because of the “Plaintiff’s ongoing flagrant disregard of the implied undertaking”. As well, counsel for the proposed defendant argues that by asking the court to amend the Plaintiff’s Statement of Claim, after the stand alone action has been struck by Justice Belzil, Arthur Kent is acting in bad faith.

It is further argued that allowing the applicant’s motion would not be appropriate as there is no legal nexus between the original defendants and the proposed charges against Robidoux. [ 20 ] It appears that adding of new defendants and amending pleadings based on information derived from disclosure covered by the implied undertaking rule from the same action has been rarely decided by Alberta courts. [ 21 ] The Plaintiff originally tried to use the discovery information unilaterally by bringing a direct claim against Robidoux.

That action was dismissed with the admonition that information disclosed in the discovery cannot be used outside that action. Arthur Kent now seeks leave of the court to amend his Amended Statement of Claim and add a party. Evidence from questioning can be utilized for a collateral purpose, “if leave of the court is sought and obtained.” [ 22 ] This case includes a “mix of competing values”. I note that Don Martin freely chose not to protect his journalist source in Robidoux.

It turns out, that if what is alleged by Arthur Kent is true, his own lawyer appears to have breached solicitor-client privilege, for which she was not protected as a source by the Defendant. [ 23 ] Arthur Kent, who is now in possession of this rather damning information, seeks not to use it for an extraneous purpose but rather to advance his original claim in which the discovery took place. [ 24 ] The inquiry must therefore revolve around whether the discretion provided in Rule 3.74, in light of the decision in Juman v. Doucette , allows for the Amendments.

It is true that the protection afforded by the implied undertaking will not be easily set aside, but arguments advanced on behalf of Robidoux, in my view, are not sufficient to fetter the court’s discretion under Rule 3.74. To say that information that is disclosed by a defendant at a pre-trial discovery cannot be used to add parties and amend pleadings in that same action is simply wrong.

This application is akin to the case of Balm v. 3512061 Canada Ltd. , 2003 ABCA 98 where the Alberta Court of Appeal stated on similar facts, that the implied undertaking rule had not been violated when information from discovery was used to add parties and amend pleadings.

To paraphrase, the Court of Appeal: the amendments here do not radically transform this lawsuit; they simply illustrate that there were more people mixed up in the already-pleaded defamation than was first realized. [ 25 ] Justice Belzil was quite right in saying that “none of the evidence produced in the Canwest action may be used for any purpose outside that action”. It is now the intent and application of Arthur Kent to keep it in the present action. In my view, Arthur Kent has met the requisite test in Juman v. Doucette and has demonstrated to the court that there is a public interest of greater weight.

In any case, information sought to be used by Arthur Kent involves “the same or similar parties” and “the same or similar issues”. There is really no prejudice to the original examinee and therefore leave is granted . Law Society Application [ 26 ] Arthur Kent also asks this court for relief from the implied undertaking rule in order for him to complain to the Law Society of Alberta about Robidoux’s conduct. [ 27 ] It is clear that Robidoux acted as Arthur Kent’s lawyer during his election campaign. The evidence reveals that she virtually

begged to be on his campaign team and readily agreed to be his counsel and official agent under the Election Act . This required the services of a lawyer who was registered to practice law in Alberta and was able to provide legal counsel and advice to the candidate, campaign manager and others. This is a task that Robidoux appears to have taken on with enthusiasm.

As part of her duties she signed Arthur Kent’s official nomination papers the day after the publication of Don Martin’s impugned article. [ 28 ] Counsel for Arthur Kent argues that if he is not granted relief from this rule then, Alberta lawyers could “breach their clients’ confidences with impunity provided they reveal such secret breaches to their clients in the course of civil discovery.” [ 29 ] This request was not before Justice Belzil, and there is no opposition to this application from Robidoux, Don Martin, or the Corporate defendants. [ 30 ] In my view the authority to relieve the plaintiff of this undertaking comes from the reasoning of the Supreme Court of Canada in Juman v.

Doucette . A careful weighing of the public interest on behalf of Arthur Kent (here, the ability to complain to the governing and regulating body of his lawyer) as against the overall societal benefit of the implied undertaking rule is at play. This case truly does include a “mix of competing values” as predicted by Justice Binnie. [ 31 ] There is a price that needs to be paid in order for a higher public interest to be protected. In this case there is no prejudice to the original defendants.

Robidoux may very well face some sanction for her actions, but so does every lawyer if they are found to breach solicitor-client privilege. [ 32 ] The reasoning of the Saskatchewan Court of Appeal in Law Society of Saskatchewan v. Robertson Stromberg [1995] S.J. No. 51 at paragraph 4 , applies in this application: As a matter of public policy the Law Society, in conducting an investigation in the affairs of a solicitor, should be entitled to override any privilege claim for the public good. In my view, the public interest in the ethical practice of law outweighs any solicitor-client privilege.

Lawyers who are being investigated should not be entitled to raise claims of privilege as a ground to refuse to cooperate in Law Society proceedings. [ 33 ] Accordingly, I see no reason whatsoever for Arthur Kent not to be relieved of his obligation, and I grant him relief from the implied undertaking rule in order to report Robidoux to the Law Society of Alberta. Conclusion [ 34 ] Therefore, having found that Arthur Kent has met the test, his application to amend his Amended Statement of Claim and add Robidoux and others as defendants is hereby allowed.

As well, Arthur Kent is granted relief from the implied undertaking rule to allow him to file the appropriate complaint with the Law Society of Alberta, and to release corresponding documentation gleaned from this litigation. [ 35 ] Costs may be spoken to. Heard on the 10 th day of February, 2011. Dated at the City of Lethbridge, Alberta this 29 th day of April, 2011.

D.K. Miller J.C.Q.B.A. Appearances: Michael Bates Ruttan Bates for the Plaintiff Gabor Zinner Zinner Law Office for the Plaintiff G. Scott Watson Parlee McLaws LLP for the Defendants David Pick Scott Venturo LLP for Kristine Robidoux Q.C.