Rumancik v Hardy, 2021 ABQB 374

Court of Queen’s Bench of Alberta Citation: Rumancik v Hardy, 2021 ABQB 374 Date: 20210512 Docket: 1701 16893 Registry: Calgary Between: Joel Rumancik and Candace Rumancik Applicants/Plaintiffs - and - Jacob Hardy and Michael Bates Respondents/Defendants _______________________________________________________ Endorsement of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] This Action is a claim in defamation arising from the publication of the statement of claim in another Action before this Court pursued by Mr.

Hardy with the representation of his legal counsel in that Action, Mr. Bates. T hat statement of claim is against the Rumanciks, among others employed with the Calgary Police Service ("CPS"), alleging conspiracy by the CPS regarding a perjury charge against Mr. Hardy (the “ Statement of Claim”). [ 2 ] On November 17, 2016 , while drafting the Statement of Claim, it is alleged Mr. Bates communicated via text message with a CBC reporter , Ms. Grant, a reporter he is familiar with, and informed her of pending litigation against CPS. Mr. Bates offered to

provide Ms. Grant with the Statement of Claim in advance of other media outlets, thereby giving Ms. Grant an “ excl usive” news story. Ms. Grant has been examined in these proceedings and has answered to questioning with respect to the facts surrounding her involvement. On November 25, 201 6, Mr. Bates filed the Statement of Claim (the “CPS Action “ ). Withi n minutes of emailing the Statement of Claim to the City of Calgary, Mr. Bates emailed the claim d irectly to Ms. Grant , who called hi m shortly thereafter. After sending the Statement of Claim to CBC, Mr.

Bates authored a press release that attached the Statement of Claim and emailed it to every major med ia outlet in Canada, and even an Edmonton lawyer with instructions to further circulate.

The news story was published on November 28, 2016, and across Canada, into the United States, and into the United Kingdom and Italy. [ 3 ] A CPS internal investigation conducted on the same allegations as those in the Statement of Claim found that there was no conspiracy. [ 4 ] The facts alleged contained within the Statement of Claim contained false statements that appear to be designed to bolster the conspiracy allegations, which consequentially injured the reputations of the Rumanciks. [ 5 ] T here have been n umerous applications throughout this Action.

In J une 201 8 , the Defendants brought simultaneous app li catio n s for su mmary dismissa l , seeking to dismiss this Action on that bases of abso l ute and qualified privilege. In January 20 19 , d uring the

summary d ismissal heari ng, w h ere qualified privilege was the primary issue before the Court, Master Robertson found that , although there may have been an initial qual ified privilege, the privilege was lo st. In dismissing their applications, Master Robertson stated: I will confes s , my significant concern about the evidence that Mr. Bates does this, has done this before , has a regular relationship w i th a CBC reporter and the suggest i on that , this is just how it is done.

Sending a Statement of C l aim to a reporter saying the facts haven't yet been proven is not the same as saying we don't believe that they are true. [ . ..] So I am very concerned that sen d ing a Statement of C l aim off is becoming some sort of regular practice because I think it is a very dangerous practice, particularly in light of the evidence of what we see happening here. [ . . . ] There is no evidence before me that this particular dispute was the subject of a d iscussion in the public that made it appropriate for a party to have a social or moral legal duty to discuss in the public.

This was imply taking a private lawsuit public to the largest broadcaster in the country. It seem to me that if this isn’t disclosing it to the world, I don’t what is… Application [ 6 ] This is my decision on the application, by the Plaintiffs Joel Rumancik and Candace Rumancik filed on February 13, 2020 requesting the following remedy: 1. An Order compelling the Defendant, Jacob Hardy “Hardy”, to answer the undertakings and objections set out in the chart attached as Appendix "A" hereto (the "Undertakings and Objections"); and 2.

Such further and other relief as counsel may seek and this Honourable Court may deem just. [ 7 ] The grounds for making this application: 3. On January 29 and 30, 2020, the Defendant, Jacob Hardy, attended questioning pursuant to

Part 5 of the Rules of Court in the within Action; 4. A number of undertakings and questions were asked of the Defendant, Jacob Hardy, which were refused and objected to; 5.

The Undertakings and Objections are relevant and material to, or could reasonably be expected to either significantly help determine one or more of the issues raised in this Action. [ 8 ] This decision is also in response to an application by the same Plaintiffs filed on January 13, 2020 asking for the additional relief: 1. compelling the Defendant Michael Bates “Bates” to answer the undertakings and objections set out in the chart attached as Appendix “A” and the grounds for this application, almost identical to those set out by Hardy.

Discussion [ 9 ] In their Statement of Defence Hardy and Bates admit to many of the facts as alleged and specifically Bates defends stating that he did all of the alleged and admitted facts in his capacity solely as counsel to Hardy. [ 10 ] Bates denies that he met with Grant to discuss the Hardy Claim at any time prior to the publication of the CBC News Article.

And in specific response to paragraph 27 of the Amended Statement of Claim, he denies that he held out to Grant that the claims in the Hardy Action were true and had merit. [ 11 ] Bates denies that he incited or convinced Grant to publish a story on the Hardy Claim.

Importantly Bates pleads that “the actions taken by Bates and his communications with Hardy for the purposes of the Hardy Action are subject to solicitor-client and litigation privilege.” As does Hardy claim solicitor-client and litigation privilege. [ 12 ] Bates goes on to state “when Bates drafted the Hardy Claim, he believed the facts alleged therein to be true or capable of being proven on the basis of the information available to him at the time”.

Notwithstanding that he goes on in the same paragraph to state that on basis of information in evidence obtained or reviewed after the filing of the Hardy claim that “the following statements require correction or clarification” and he goes on to make those corrections or clarifications.

[ 13 ] He denies, the lawyer Bates, that he did publish the alleged defamatory statements to the world and has no responsibility for the news articles.

He makes very specific denials of some of allegations in the Statement of Claim. [ 14 ] Bates in the Statement of Defence goes on to state the alleged defamatory statements set out in the Hardy Claim were made on the basis of the information available to Bates at the time of drafting, and for the sole purpose of particularizing the facts giving rise to Hardy’s claim against the Calgary Police Service and certain of its employees.... [ 15 ] In paragraph 24 he states “at all material times, Bates acted on the reasonable and honest belief that it was in Hardy's best interests for the local media to be made aware of his claims so that they could decide whether to make those claims known to the public based on their professional judgment...”.

In the alternative, the Allegedly Defamatory Statements, are subject to qualified privilege. In this regard, Bates, he claims, had a right and duty to communicate the allegedly defamatory statements to the media, which in turn had a legitimate interest in, and the expectation of, receiving that information in order to exercise their right and discharge their duty to inform the public of matters before the courts. [ 16 ] The Defence says that it was Hardy’s right and duty to seek public scrutiny of the matters he brought before the court.

Further or in the further alternative, the Allegedly Defamatory Statements, “as qualified by the wording set out in paragraph 6 above, constitute fair comment and are responsible communications on a matter of public interest.” [ 17 ] It is noteworthy that both Defendants have pleaded the defences of responsible communication in the public interest and qualified privilege to defamation. Quoting from the brief of the Applicant, “as such information that relates to the establishment of either defence and presence of malice which defeats such defences is pivotal in this action.

Yet through this litany of objections made during questioning the Defendants have sought to shield themselves from any meaningful exploration of these doctrines by the Rumancik’s counsel.” [ 18 ] I can advise that I have read all the undertakings and questions that have been produced before me and argument both in support of the questioning and opposed and I find that the undertakings and questions are clearly relevant and material with a couple of exceptions that I refer to later. [ 19 ] It is relevant how the conduct of the Defendants communicated to the world, and that they published to the world, alleged defamatory statements that may have defamed the Rumanciks.

It is alleged that the Defendants incited and influenced Grant to run a story in print and on television about these statements and the Hardy claim. It is alleged that the Defendants knew that the communications would result in publication of the defamatory statements and it may be that the actions of the Defendants were, as alleged by the Applicants. [ 20 ] The questioning of Bates resulted in 68 objections and 3 undertakings.

In Hardy’s situation there were 110 objections and 5 undertakings. [ 21 ] The Applicants allege that as a result of these numerous objections and failures of undertakings that the Rumanciks have been wholly prevented from meaningful discovery. [ 22 ] In Grant v Torstar Corp , 2009 SCC 61 , “If the Plaintiff proves the required elements, the onus then shifts to the Defendant to advance a defence in order to escape liability.” This is the leading case in this area and creates the framework for this action. [ 23 ] The Plaintiff’s allege in a defamation action they must prove three elements to obtain judgment: 1) the impugned words were defamatory 2) that the words in fact referred to the Plaintiff and 3) that the words were published. [ 24 ] Grant v Torstar shifts the onus to the Defendants to advance their defence to escape liability.

It is noteworthy again what the Plaintiffs’ pleadings allege and more particularly the defences plead. Of course, it goes without saying that a litigant is obligated to disclose all relevant and material records and information and answers to questions that are also relevant and material. [ 25 ] The pleadings in this case, both the claim and most important the defence, raise questions with respect to publication, responsible communication in the public interest, qualified privilege and malice.

As stated in the applicant’s brief at paragraph 30. “In his Statement of Defence, Bates concedes to filing the Hardy’s Statement of Claim and communicating or publishing same with the press release to Grant and other media contacts on Hardy’s behalf...” They, the Plaintiffs, go on to state: Accordingly, details surrounding the communication or publication of the Defamatory Statements are plainly relevant and material to this Action, including those pertaining to the Defendants' knowledge of, or participation in; (1) the Grant Communications; (2) the CBC Article; and (3) any subsequent news articles concerning the Defamatory Statements .

In particular, any involvement of the Defendants in supplying information regarding the Defamatory Statements to Grant, directly or indirectly, is relevant and material to the issue of publication. [ 26 ] I agree. [ 27 ] The Plaintiffs state in paragraph 32 of their brief, “The Defendants have pleaded responsible communication ...which obliges the Defendants to first show that the communication or publication was on a matter of public interest; and second, that the communication or publication was responsible, in that the Defendants were diligent in trying to verify the Defamatory Statements. [ 28 ] I agree with these items.

Additionally, the Defendants have pleaded qualified privilege in defence to defamation.

[29] In dealing with malice, the Applicants say “given the defences pleaded by the Defendants, the issue whether the Defendantsacted with malice is a crucial one in this action, the absence of malice is effectively built into the definition of responsible journalismitself”.

And they go on “malice encompasses spite, ill-will or any indirect motive or ulterior purpose that conflicts with the sense of dutyor mutual interest which this occasion created.” I agree that the following information as enumerated in paragraph 39 of the Applicationis relevant and material therefore those questions must be answered by the Defendants. [30] In a review of the undertakings identified by the Applicants and pursuant to my order I am satisfied that all of the questionsidentified and supported must be answered with the exception of question number 36 regarding Mr.

Bates and with respect to questionnumber 5 with regard to Mr. Hardy. I am open to receiving further submission on those two questions if necessary. [31] I also note the objections of Mr. Hardy with respect to questions put regarding Mr. Hepner and would indicate that morespecificity is required with respect to the response to determine whether or not that answers the inquiry. [32] I also note en passant that the Law Society of Alberta code of conduct at paragraph 3.3-4 states that If it is alleged that alawyer or the lawyer’s associates or employees: (

b) are civilly liable with respect to a matter involving a client’s affairs...the lawyer maydisclose confidential information in order to defend against the allegations, but must not disclose more information than is required. [33] I also want to note that I received additional information on this action since the original brief and materials were provided tome on this application to compel undertakings.

Although I have reviewed that material and it is substantial, I have not relied on it inarriving at my conclusions herein. [34] The Defendants, Bates and Hardy, protest at great length that their reasons to refusing to answer questions and to delverundertakings is that it violates the principle of solicitor-client privilege. In answer to that complaint, I find that on all of the alleged facts,the proven and admitted facts that privilege of this nature has been waived and further that by the very nature of the pleadings and therelationship of the parties, they have impliedly waived solicitor-client privilege.

So that the privilege does not apply to protect or shelterthe Defendants from answering the questions enumerated in this case. Law [35] The Defendants Hardy and Bates argue that Solicitor-client privilege takes precedence here with respect to answering thequestions put to them by counsel for the Rumanciks. They quote from Canada (Privacy Commissioner) v Blood Tribe Department ofHealth [2008] 2 SCR at paragraph 9 and 10.

And I note in paragraph 10 ...“The extremely limited nature of the exception emphasizes,rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “as close to absoluteas possible to ensure public confidence and retain relevance (McClure, at para. 35)””.

They also refer me to Solosky v The Queen,[1980] 1 SCR, R v Lavalee, [2002] 3 SCR, Attorney General of Canada v Federation of Law Societies of Canada, [2015] 1 SCRwhere Justice Cromwell said at paragraph 1 “ Lawyers must keep their clients’ confidences and act with commitment to serving andprotecting their clients’ legitimate interests”.

At paragraph 38, “However, the reasonable expectation of privacy in relation tocommunications subject to solicitor-client privilege is invariably high, regardless of the context.” [36] However, Madam Justice Kirker of this court in JL Energy Transportation v Alliance Pipeline Limited Partnership, 2021ABQB 223, said this commencing at paragraph 18: [18] There is little disagreement between the parties about the nature and scope of solicitor-client privilege and of litigation privilege,or about the law that governs the waiver of privilege.

The law is nicely summarized in Angus Partnership Inc. v Salvation Army, 2011ABQB 512, and Nixon v Timms, 2012 ABQB 65, both cited in the parties’ materials. [19] The parties agree that privilege can be waived by a party expressly or by implication. Here, there has been no express waiver.The Defendants seek to establish an implied waiver. The onus is on them. The parties recognize that solicitor-client privilege is zealouslyguarded: Angus at para 16.

While neither absolute in its scope nor permanent in duration, they also recognize that litigation privilegeprovides protection essential to the proper operation of the adversarial process: Blank v Canada (Department of Justice), 2006 SCC 39,paras 37-41. [20] The Alliance and Aux Sable Defendants acknowledge that the burden of proving that privilege has been waived is a heavyone: Nixon at para 15, citing Freyberg v Fletcher Challenge Oil and Gas Inc., 2007 ABQB 80, at para 2. [21] Implied waiver may occur where a party: 1. voluntarily puts its state of mind at issue, as distinct from cases in which the state of mind is put in issue by the party seeking to havethe privilege waived; 2. relies upon privileged communications to ground a claim or base a defence; or, 3. attempts to support an argument that it acted in good faith based upon undisclosed legal advice: see Nixon at para 14,citing Angus para 10. [22] In United States of America v Friedland, (1996) 30 O.R. (3d) 568 p 572, para 12 (ONSC), Sharpe J. (as hethen was) referred to the following passage from Wigmore on Evidence (McNaughton rev., 1961) vol. 8, para. 2327, as guiding theanalysis: What constitutes a waiver by implication?

Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated inevery waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would

seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended the result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.

He may elect to withhold or to disclose, but after a certain point his election must remain final. ... [italics in original] [ 37 ] I find after the review of these cases and a detailed review of JL Energy Transportation that implied waiver has occurred in this case with respect to Hardy and Bates. I find on the evidence before me that they voluntarily put their state of mind at issue, this is also found by Justice Kirker as distinct from cases where the opposite party puts their state of mind in issue. Hardy and Bates specifically did this through their pleadings.

They also rely on privilege communications to base a defence and attempt to support an argument that they acted in good faith based upon legal advice. Decision [ 38 ] In this case I find that the waiver is triggered by the nature of the pleading filed by Bates and Hardy and therefore I arrive at the conclusion that the questions that I have identified must be answered. [ 39 ] The Parties may address the question of costs if they are unable to agree by way of written submissions not to exceed 5 pages within 45 days of the rendering of this decision. Heard on the 19 th day of November, 2020.

Dated at the City of Calgary, Alberta this 12 th day of May, 2021. W.P. Sullivan J.C.Q.B.A. Appearances: Matti Lemmens for the Applicants/Plaintiffs Eugene J. Bodnar for Michael Bates Jacob Hardy Self Represented