Kent v. Martin, 2013 ABQB 27

Court of Queen ’ s Bench of Alberta Citation: Kent v. Martin, 2013 ABQB 27 Date: 20130114 Docket: 0801 08414 Registry: Calgary Between: Arthur Kent Plaintiff (Applicant) - and - Don Martin, the National Post Company, Canwest Publishing Inc., National Post Holdings Ltd., Canwest Mediaworks Inc., Kristine Robidoux, Q.C., Roderick Love, Alan Hallman, Bruce Thorpe, Bill Smith and Does 5 - 10 Defendants (Respondents) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.A.

Tilleman _______________________________________________________ Introduction [ 1 ] The Plaintiff’s application for relief from an implied undertaking arises from a complex defamation action between him and numerous provincial and national Defendants.

[ 2 ] The Plaintiff seeks the Court’s permission under Rule 5.33 to allow him to report his previous counsel to the police for conduct that allegedly includes concealing conflicting interests and fraud. Procedure [ 3 ] Before bringing his application, the Plaintiff served copies of the filed motion and unfiled affidavit on all Defendants - and some new Defendants - the idea being to give all opposite parties a chance to seek a ban or sealing order. All Defendants have had a chance to seek restrictions on release of the material or notify the Court of their concerns; nobody opposed.

Nobody except the Applicant made submissions. [ 4 ] As stated by the Applicant, the facts require that: 1.

Arthur Kent (“Kent”) seeks leave of the Court to use records and evidence obtained during the conduct of the within proceedings to report, inter alia , alleged fraud and fraudulent concealment by his former lawyer of record, Sabri Shawa, Q.C. (“Shawa, Q.C.”), to members of the Calgary Police Service, Royal Canadian Mounted Police, or such other law enforcement agency as may be responsible for the investigation and commencement of prosecution for alleged criminal and quasi-criminal offences as may have arisen during the conduct of the within proceedings (“Police Investigation”). 2.

This Court’s permission to file such a report is necessary because the alleged criminal misconduct has occurred during and by way of the civil litigation process. As such, much of the relevant and material evidence of alleged wrongdoing involves acts and omissions of Shawa, Q.C. during or in relation to examinations for discovery. To properly and fully investigate Kent’s allegations the Police Investigation will need to review and consider records and discovery transcripts that are otherwise subject to the implied undertaking of confidentiality.

The Law [ 5 ] The Alberta Rules of Court provide: Use of transcript and answers to written questions 5.31(1) Subject to rule 5.29, a party may use in support of an application or proceeding or at trial as against a party adverse in interest any of the evidence of that other party in a transcript of questioning under rule 5.17 or 5.18 and any of the evidence in the answers of that other party to written questions under rule 5.28 ...

When information may be used 5.32 The transcript of questioning, including exhibits, made under this Division, an affidavit of records, affidavits and answers to written questions, and correcting affidavits under this Division (

a) must not be filed and must not be put before the Court except during an application, proceeding or at trial, and (

b) may be filed and put before the Court only as permitted by these rules,

in which case the person relying on the documents filed must provide the material in writing or in any other form permitted by the Court. Confidentiality and use of information 5.33(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless (

a) the Court otherwise orders, (

b) the parties otherwise agree, or (

c) otherwise required or permitted by law. ... Discussion and Analysis [ 6 ] While Rule 5.33 now deals explicitly with implied undertakings in Alberta, the leading case dealing with implied undertakings is Juman v Doucette , 2008 SCC 8 , [2008] 1 SCR 157 [ Juman ]. The principles in Juman have been recently summarized by the B.C. Supreme Court in Henry v British Columbia ( Attorney General ), 2012 BCSC 1878 , as follows: [42] Pursuant to the implied undertaking rule, evidence compelled during pre-trial discovery can be used only for the purpose of the litigation in which it was obtained.

The rule applies to both civil and criminal proceedings: R. v. Basi, 2011 BCSC 314 . [43] The rule attempts to balance the public interest in getting at the truth against a litigant’s privacy interest. To that end a litigant will be compelled to make full disclosure, but the law imposes on the party an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the proceedings in which the answers or documents were compelled: Juman paras. 23-28 . [44] The undertaking is not absolute.

It may be trumped by a more compelling public interest and a party may apply to the court for leave to use the information or documents other than in the action in which they were disclosed.

An application to modify or be relieved against an implied undertaking requires the applicant to demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values that the implied undertaking is designed to protect: Juman , para. 32 . [45] In Juman , the court discussed the criteria and factors the court should weigh in determining whether or not to lift an undertaking when an application is made to use material in one action in a different proceeding.

The court noted at para. 35 that when discovery material in one action is sought to be used in another action between the same or similar parties and raising the same or similar issues, the prejudice is virtually non-existent and leave will generally be granted. [46] The implied undertaking continues even after the proceeding in which it originated terminates. The undertaking is, however, spent when the documents become part of the court record at trial but not otherwise, except by consent or court order: Juman , para. 51 . [ 7 ] I believe the above-referenced

summary of Juman and new Rule 5.33 apply nicely to the case at bar. In other words: (

a) Pre-trial discovery evidence should only be used in the litigation in which it has been obtained, and

(

b) if there is a more compelling public interest in doing so, a party may ultimately apply to the Court for leave to use that information in the other “proceeding” if the Court believes the applicant has proven on a balance of probabilities the public interest supports it being used there. [ 8 ] In short, the implied undertaking is a significant barrier requiring extraordinary caution in the use of disclosed evidence.

And as my reasons below point out, relief from the undertaking need not be given if the information underlying the application is already public. [ 9 ] The Applicant properly applies for relief from the implied undertaking - an undertaking that I repeat should only be set aside in rare circumstances: Juman , at para 38 . This point and a subsequent ruling made by Justice Belzil in an earlier case involving this Plaintiff: ( Kent v. Martin , 2010 ABQB 479 ), 34 Alta LR (5 th ) 317 speak to this caution.

Accordingly, the Applicant followed the proper steps in bringing the matter to the Court. [ 10 ] Somewhat surprisingly, the current application was not opposed. To me, that nobody would speak to it or even raise a concern, was unforseen. Mr. Shawa’s counsel (Mr. Derer) appeared in court, as he was entitled to do, but to watch only.

All counsel had notice of the forthcoming affidavit and without any objection or cross examinations, the Plaintiff filed it November 2nd, 2012. [ 11 ] Largely on the basis that the application is unopposed and the potential evidence is now filed and failing any examination of that affidavit by any Defendant, I am prepared to relieve the Plaintiff of the undertaking - subject however to the preliminary ruling I make below. [ 12 ] In making this preliminary decision I stress a couple of points.

First, I am not commenting on the merits of the allegation including whether I think it has the necessary bona fides ; if the police move “full steam” ahead and shouldn’t have, there are remedies to deal with that. [ 13 ] I also stress, as I did during the Plaintiff’s arguments, that I believe overwhelmingly that the proper course of action in a case like this, would be: (1) first, file a report to the Law Society (who themselves can suggest criminal charges if need be), or (2) civil action(

s) against the previous counsel (if need be). There are remedies for getting that wrong, too. [ 14 ] In

summary, with the application being unopposed, the matter can proceed to the police review. But whether it moves beyond that, and whether it could have or should have even reached this stage, is frankly a matter of prosecutional discretion, and the applicant’s discretion, respectively. Conclusion [ 15 ] This is a cautious ruling. On the unique facts of this case, it is not necessary for me at this stage to grant Rule 5.33 relief from the implied undertaking.

In other words, while it is true that there is no objection to the application, it is also true that the police or Law Society of Alberta can already look at the very lengthy affidavit of Arthur Kent dated August 20, 2012, (filed November 2, 2012) and decide for themselves whether a professional investigation is necessary, or criminal conduct has occurred. They are at liberty to do so.

Heard on the 21 st day of December, 2012 and the 8 th day of January, 2013 Dated at the City of Calgary, Alberta this 14 th day of January, 2013. W.A. Tilleman J.C.Q.B.A. Appearances: Michael Bates for the Plaintiff (Applicant) No one appeared for the Defendants (Respondents)