AP v SP, 2017 ABQB 672

Court of Queen’s Bench of Alberta Citation: AP v SP, 2017 ABQB 672 Date: 20171103 Docket: 1203 00978 Registry: Edmonton Between: AP and Her Majesty the Queen In the Right of Alberta Respondents (Plaintiffs) - and - SP Applicant (Defendant) Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. Editorial Notice: This unofficial electronic version of the judgment has been revised to comply with the court-ordered publication ban. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice R. Khullar _______________________________________________________

I. Introduction [ 1 ] The Defendant applies under rule 6.8 to compel the Plaintiff’s former legal counsel to answer questions. The Plaintiff objects on the basis of solicitor and client privilege. The Defendant argues that the privilege was waived when the Plaintiff swore an affidavit, in response to an application to find the Plaintiff in contempt of court, referring to certain communications with her former legal counsel. The Plaintiff denies that privilege has been waived, and asks that this application be dismissed. II.

Background Facts [ 2 ] The Plaintiff is the Defendant’s daughter and has sued him for damages arising from alleged historical sexual abuse. The issues arise from scheduling Questioning in 2016. Questioning was originally scheduled in January and then again in February 2016, but both times it was adjourned by consent because of emergencies arising for the Plaintiff’s former lawyer. It was then scheduled for March 28, 2016 and the Defendant filed and served a Notice of Appointment to Attend with conduct money for March 28, 2016. That examination did not proceed.

Then a Consent Order was entered into on September 9, 2016 which said, among other things: 1. The Plaintiff, [AP], shall attend for questioning at the offices of the lawyer of record for the Defendant on September 28 and 29, 2016 at 10:00 a.m. and bring any records likely to be required; 2. The Defendant shall recover a cost award in the amount of $157.50 against the Plaintiff, [AP], in respect of the nonappearance on March 28, 2016; 3.

The Plaintiff [AP’s] lawyer shall cause her to have actual knowledge of this Order. [ 3 ] The uncontroverted evidence is that the Plaintiff appeared at the Defendant’s lawyer’s office on September 28 th at approximately 9:50 a.m. and was shown to the boardroom where the examinations were to occur.

She left the offices at approximately 10:20. [ 4 ] On September 28 th the Defendant filed an Application seeking to hold the Plaintiff in contempt of court for breaching the Consent Order of September 9 th . [ 5 ] In response to the contempt application, the Plaintiff swore an affidavit on January 10, 2017, which included the following statements: The communication between my previous lawyer and I have always been poor. My previous lawyer on three occasions failed to attend scheduled questioning, failed to obtain my instructions and carry out my instructions at critical points in this lawsuit.

In October of 2016, Mr. Bataluk withdrew as counsel of record after being served, as my counsel, with an application for contempt for my failure to attend questioning in September 2016 (para 5). [ 6 ] She later deposes that she did not become aware of the Notice of Appointment for Questioning for the March 28, 2016 scheduled examinations until her new lawyer was reviewing the file and further: At no time, did I ever receive a copy of the Notice of Appointment for Questioning or the cheque for the conduct money.

Further, at no time do I recall discussing with my lawyer the significant [sic] of this notice (para 10). [ 7 ] In her affidavit she deposes that she had concerns about appearing in a room with her father during questioning. She deposes that her former lawyer advised her that her father had a right to be present during questioning, but that her former lawyer would do what he could to accommodate her concerns.

With respect to the March 28, 2016 questioning, she deposes that she raised the concerns about being in a room with her father and she states: My previous lawyer advised that he would deal with it or reschedule the Questioning.

As I did not hear back from my lawyer, I did not attend on March 28 or 29, 2016 for Questioning (para 11). [ 8 ] With respect to the September 9, 2016 Consent Order, she deposes: While I do recall, agreeing to set up a further attempt at Questioning, at no time did I ever give instructions to my lawyer to consent to this Order on my behalf particularity [sic] as to my required attendance at Questioning on September 28 and 29, 2016 or my consent to pay my father $157.50 in costs (para 12). [ 9 ] She deposes that in advance of the September 28, 2016 questioning, she raised with her former lawyer her concerns about her father being present, and “he again assured me that he would take care of it” (para 13). [ 10 ] She deposes that on September 28, 2016 she attended at approximately 9:50 a.m. and was shown to the boardroom where the Court Reporter was present.

After waiting ten to fifteen minutes, she called her lawyer’s office and was advised he was running late. She said she became aware her father was in an adjacent room and became very anxious. She decided to leave and wait for her previous lawyer on the ground floor lobby. When he arrived, she told him about her concern about her father’s presence and she was advised “there was nothing he could do about it” (para 15). III. Issue

[11] During oral argument it was clear that the only applications before me were the Defendant’s application to have Mr. Batalukanswer questions pursuant to rule 6.8, and whether the objections to proposed questions for Mr. Bataluk (which had been reduced towriting) could be sustained. The basis for the objections was that answering the questions would breach solicitor-client privilege. Thereal issue then is, did the Plaintiff waive privilege by deposing to her conversations with Mr. Bataluk in her January 10, 2017 affidavit,and should I exercise my discretion to permit questioning of Mr.

Bataluk in the following areas: - The communication of the Notice of Appointment for Questioning and the conduct money for questioning for March 28, 2016; - The reasons why the March 28th questioning did not proceed; - The instructions, or lack thereof, from Ms. AP to Mr. Bataluk regarding the Consent Order of September 9, 2016; - What Mr. Bataluk communicated to Ms. AP regarding how he would take care or accommodate her concerns regarding her fatherbeing present through questioning; and - The conversation between Mr. Bataluk and Ms.

AP on September 28, 2016. [12] Not before me is the Defendant’s application for contempt or the Plaintiff’s cross-application to seek accommodation for howthe Questioning should occur in light of the Plaintiff’s discomfort with having her father present while she is questioned. In addition, thePlaintiff was cross-examined on her affidavit, and there are a number of outstanding issues related to that cross-examination, but thoseare not before me on this application. [13] Lastly, as indicated the Defendant had provided the Plaintiff a list of written questions for Mr. Bataluk, apparently pursuant toan agreement.

I was advised that the Plaintiff objected to all of the questions on the basis of privilege, and then resiled from theunderlying agreement to proceed in this manner. I will not address whether there was an agreement, or if it has been breached, as I willbe ruling on the appropriateness, or not, of the questions and the issue of the agreement of the parties is not relevant to the issue I will bedeciding. IV.

Law [14] The Defendant relies on rule 6.8 in support of its application, which states: A person may be questioned under oath as a witness for the purpose of obtaining a transcript of that person’s evidence for use at thehearing of the application, and

a) rule 6.16 to 6.20 apply for the purposes of this rule, and

b) the transcript of the questioning must be filed by the questioning party. [15] First, it is important to note that this is not a Norwich type application – where a party is seeking the right to question a personprior to commencing a legal action: The legal test for a Norwich application (including necessity) does not apply in these circumstances.As noted in the commentary under Fradsham’s Alberta Rules of Court Annotated 2018, this rule and its predecessor, is similar to asubpoena duces tecum in that a party wishing to examine a witness must establish that the evidence from the witness may be relevant andmaterial in order to compel the witness to attend.

The onus is then on the witness to object as to why he or she does not have to attend.Robertson v Edmonton Chief of Police, 2003 ABQB 188 (Clackson, J.) at para 14, aff’d 2003 ABCA 279; Apotex Inc. v Alberta(1966), (AB KB), 38 Alta LR (3d) 153 (at para 65) (Hutchinson, J.). [16] The Plaintiff’s position appears to be first, there is nothing Mr. Bataluk can offer in evidence that is material and relevant toan issue in the lawsuit.

Alternatively any evidence that could be offered is protected by solicitor and client privilege, which has not beenwaived. [17] The issue of materiality and relevance turns on whether I am considering the issues in the lawsuit, or in the application forcontempt. [18] Clearly the potential evidence is irrelevant to the underlying tort action of sexual abuse. Is it relevant and material to thecontempt application? The Defendant argues the evidence would go to the Plaintiff’s credibility; her evidence references herconversation with Mr. Bataluk and he is entitled to explore Mr.

Bataluk’s version of those conversations. [19] I agree that the evidence may be relevant and material to the contempt application. [20] The question then becomes whether the solicitor-client privilege which attaches toMr.

Bataluk’s conversations with his client has been waived by the Plaintiff in the January 10, 2017 affidavit. [21] The Supreme Court of Canada recently reaffirmed the importance of solicitor-client privilege as a substantive rule of law anda principle of fundamental justice, attaining quasi-constitutional status: Alberta (Information Privacy Commissioner) v University ofCalgary, 2016 SCC 53 at paras 38-41.

Because of its hallowed status, solicitor-client privilege is not to be interfered with unlessabsolutely necessary (at para 43). [22] A party can waive privilege when it “voluntarily injects into the proceeding the question of its state of mind, and, in doing so,uses as a reason for its conduct the legal advice it has received”. Fraser v Houstan, 2002 BSCC 1378 (at para 22), aff’d 2003 BCSC 853at para 18, and as cited in Pacific Concessions Inc. v Weir, 2004 BCSC 1682 at para 13.

[ 23 ] Keeping in mind the principles from Alberta (Information Privacy Commissioner) v University of Calgary , any such waiver should be narrowly construed. This is the approach taken in Walji v Quraishi , 2007 ABQB 643 , a case analogous to this one, when Graesser, J. found that a party had waived solicitor-client privilege when it alleged that an admission made in the pleadings was a mistake of former solicitors (at paras 43-44, 59). V. Application to Facts [ 24 ] The application before me is in support of the Defendant’s application for contempt.

The contempt application is based on an alleged breach of the September 9 th Consent Order. [ 25 ] While Ms. AP’s January 10, 2017 affidavit contains much information about the evolution of Questioning on this file, only paragraphs 12 through 15 of her affidavit relate to her knowledge of the Consent Order and the examinations on September 28, 2016. Those are the only issues relevant to the contempt application. What happened earlier in the file, particularly with the March 28 Questioning, is not relevant to an alleged breach of the September 9 th Consent Order. [ 26 ] I find that Ms.

AP has waived privilege with respect to the specific communications she identified in her affidavit at paragraphs 12 to 15 in relation to this application. I have reviewed the list of proposed questions to Mr. Bataluk set out in the affidavit of Larissa Gibson, sworn April 19, 2017. The questions set out are very broad and inappropriate. While solicitor-client privilege was waived, that waiver is limited to the particular topics and conversations referred to in paragraphs 12 to 15 of the affidavit, in particular as to whether she is in breach of the September 9, 2016 Consent Order.

It is not a broad waiver of all solicitor-client privilege. [ 27 ] Specifically, keeping in mind that waiver should be construed narrowly, the following line of questioning of Mr.

Bataluk will be permitted: • Whether he had instructions from his client to enter into the Consent Order of September 9, 2016. • Whether he provided the September 9, 2016 Consent Order to his client and communicated the importance of the Order. • What did he communicate to his client in the meeting before the September 28 th questioning about her concern that her father not be physically present during her Questioning. • What he communicated on September 28, 2016 to her with respect to her father’s presence for questioning. [ 28 ] Given that I am completely familiar with this matter now, and with a view to efficient use of judicial resources, I will remain seized with this file for the Defendant’s contempt application and the Plaintiff’s cross application seeking an accommodation in Questioning.

Heard on the 29 th day of August, 2017. Dated at the City of Edmonton, Alberta this 3 rd day of November, 2017. R. Khullar J.C.Q.B.A. Appearances: Dale Knisely Knisely Law for the Applicant (Defendant) Mark Smith

Engelking Wood for the Respondents (Plaintiffs) Christopher Bataluk Iginla & Company former counsel for Respondents (Plaintiffs)