Goold v Allen, 2023 ABKB 66

Court of King’s Bench of Alberta Citation: Goold v Allen, 2023 ABKB 66 Date: Docket: 1701-15128 Registry: Calgary Between: Linda Goold Plaintiff - and - Harry Charles Allen and the City of Calgary Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] This matter came before me in morning civil chambers.

It is an action related to a motor vehicle accident ( Accident ) in which the Defendant, Harry Charles Allen ( Allen ), while employed by the City of Calgary ( City ) and driving a City transit bus, entered the Plaintiff’s lane and struck her vehicle causing damage in an admitted “side-swipe” collision. [ 2 ] The Plaintiff seeks production of records respecting Allen’s employment with the City ( Employee Records ). The City

opposes the application. For the reasons set out below, the application is granted. II. Background [ 3 ] The Statement of Claim was filed on November 9, 2017. It claims damages approaching $400,000 in aggregate for damages arising out of the Accident. In the Defendants’ Statement of Defence filed December 12, 2017, the City admits liability for the Accident. The City denies the damages claimed and, among other things, asserts that the Plaintiff failed to mitigate her damages. [ 4 ] In March 2019, the Plaintiff requested certain Employee Records from the City related to Allen’s driving abilities.

In her affidavit, she testifies that Allen appeared to continue to push into her lane notwithstanding she honked her horn more than once to warn him she was there, and that he just kept going. Her position with the City was that Allen’s driving record, or a history of a pattern of bad driving, or any issue that could have impacted his driving at the time of the Accident, if it was known to the City, is relevant in determining damages. [ 5 ] The City refused to produce any Employee Records on the basis they were irrelevant as a result of City’s admission of liability.

The City also advised that it would not permit any questioning of the City’s representative in relation to Allen’s driving record. [ 6 ] On August 29, 2022, the Plaintiff filed an application seeking disclosure of Allen’s Employee Records. [ 7 ] On September 15, 2022, Justice Ashcroft directed the parties to a mediation, and set deadlines for the filing of expert reports.

She adjourned the disclosure application and directed the parties to provide authorities on that issue by September 30, 2022. [ 8 ] On November 28, 2022, Justice Dilts granted the Plaintiff leave to amend the Statement of Claim to include a claim for exemplary and punitive damages. Her order also directed the Plaintiff to serve the Defendants with Interrogatories regarding the issues raised in her disclosure application, and for the Defendants to respond.

The application was then adjourned until January 19, 2023 when it came before me. [ 9 ] In addition to affidavits of the parties, the Plaintiff’s Interrogatories, and the Defendants’ responses (by way of an affidavit of Tony Fraser, Lead Training Officer with Calgary Transit), were before me. An unfiled copy of the Amended Statement of Claim, including the amendment to claim exemplary and punitive damages, was also before me. Counsel advised it had been sent for filing. III.

Issue [ 10 ] The issue on this application is whether the City must disclose and produce Allen’s Employee Records, or some of them, to the Plaintiff. IV. Analysis [ 11 ] The purpose of records disclosure in civil actions is set out in rule 5.1(1) of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules ): 5.1(1) Within the context of rule 1.2, the purpose of this

Part is (

a) to obtain evidence that will be relied on in the action, (

b) to narrow and define the issues between parties, (

c) to encourage early disclosure of facts and records, (

d) to facilitate evaluation of the parties’ positions and, if possible, resolution of issues in dispute, and (

e) to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them. [ 12 ] Disclosure obligations are not limitless. They are not designed to allow every stone, or every potential, possible, speculative or theoretical stone, to be turned over. Rules 5.5, 5.6 and 5.10 set the limits.

They require parties to civil actions to disclose in an affidavit of records, and if available to produce for inspection, records that are “relevant and material to the issues in the action” and which are or have been under a party’s control: rule 5.6(b). [ 13 ] Rule 5.2 outlines when a record is relevant material: When something is relevant and material 5.2(1) For the purposes of this Part, a question, record or information is relevant and material only if the answer to the question, or the record or information, could reasonably be expected (

a) to significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.

(2) The disclosure or production of a record under this Division is not, by reason of that fact alone, to be considered as an agreement or acknowledgment that the record is admissible or relevant and material. [ 14 ] Courts are not to be overly strict in assessing relevance and materiality: The Canada Trust Co (McDiarmaid Estate) v Alberta (Infrastructure) , 2022 ABCA 247 at para 28 [ Canada Trust Co ], citing Weatherill (Estate of) v Weatherill , 2003 ABQB 69 . [ 15 ] Relevance must be determined with respect to the issues set out in the pleadings: Canada Trust Co at para 29 ; Dow Chemical Canada ULC v Nova Chemicals Corp , 2014 ABCA 244 , at para 17 . [ 16 ] Materiality, on the other hand, while also dependent on the issues, is more a matter of proof: Canada Trust Co at 29; Weatherill at para 16 .

Courts must consider whether the records could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings, or to ascertain evidence that could do so: rule 5.2; Canada Trust Co at para 30 ; Weatherill at paras 15-17 . Whether a record is material depends on whether it can help, directly or indirectly, prove a fact in issue: Tolton v Tolton , 2020 ABCA 218 at para 24 ; Dow Chemical Canada ULC v Nova Chemicals Corporation , 2014 ABCA 244 at para 17 .

At the interlocutory stage, courts should not measure the proposed line of argument too finely – if a party can disclose a rational strategy in which the disputed document plays a material part, that should be sufficient because the purpose of the rule is to avoid abusive, excessive, and unnecessarily expensive discovery, not to cut off legitimate lines of inquiry: Canada Trust Co at para 29 , citing Weatherill .

However, the proposed discovery should not be unrealistic, speculative, or without any air of reality: Dow Chemical at para 21. [ 17 ] In this case, because liability has been admitted, the issues in the action are effectively limited to damages and mitigation of damages. As noted above, in November 2022, our Court allowed the Plaintiff to amend the Statement of Claim to include a claim for punitive and exemplary damages.

To my knowledge, this decision has not been appealed and so the application proceeded in front of me on the basis that this Court had already been satisfied that there was sufficient evidence to support the proposed amendment to add a claim for punitive and exemplary damages. [ 18 ] The Plaintiff argues that the Employee Records are relevant and material to the issue of whether punitive or exemplary damages should be awarded in this case.

The Plaintiff’s proposed line of argument, paraphrased, is that if Allen had a poor driving history, was unfit to drive a transit bus for some reason, or had some other characteristic that would show a greater likelihood to be involved in motor vehicle accidents, and the City knew about it and allowed him to drive a City transit bus, punitive or exemplary damages may be warranted. [ 19 ] In Whiten v Pilot , 2002 SCC 18 at para 94 , the Supreme Court of Canada provided this helpful

summary respecting punitive damages: 94 To this end, not only should the pleadings of punitive damages be more rigorous in the future than in the past (see para. 87 above), but it would be helpful if the trial judge’s charge to the jury included words to convey an understanding of the following points, even at the risk of some repetition for emphasis.

(1) Punitive damages are very much the exception rather than the rule, (2) imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.

(3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant, (4) having regard to any other fines or penalties suffered by the defendant for the misconduct in question.

(5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation.

(6) Their purpose is not to compensate the plaintiff, but (7) to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened.

(8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and (9) they are given in an amount that is no greater than necessary to rationally accomplish their purpose.

(10) While normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages.

(11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient. [ 20 ] Accordingly, the issues in the pleadings in this action include whether the City’s conduct was high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs from a marked degree from ordinary standards of decent behaviour: Condominium Corporation No 311443 v Goertz , 2016 ABCA 362 at para 45 .

The alleged egregious conduct may arise before the event that led to the Accident in this case, or can may have arisen after the Accident, such that it is legally connected to the claim arising out of the Accident: Steinkrauss v Afridi , 2013 ABCA 417 at para 14 . In my view, based on the legal test for punitive damages, Allen’s Employee Records are relevant to issues in the pleadings. They directly bear on the issue of whether the City was aware of a problem with Allen’s fitness to drive a transit bus.

They also go to the issue of the City’s conduct in employing and deploying Allen as a transit bus driver, and to the issue of the City’s transit bus driver practices and whether those practices depart from ordinary standards of decent behaviour. [ 21 ] The next question is whether Allen’s Employment Records are material. There is an evidentiary foundation before the Court to inform the analysis. The Plaintiff’s Interrogatories, and the City’s response to them, indicate, among other things: (

a) the City no longer has driver abstracts for Allen in its possession, as he left the City’s employment in May 2016 and the City only retains driver abstracts for five years. The City has a “Summary of Driving Record” from 2005 when Allen first applied for employment with the City, which it has now produced; (

b) the City has no information to indicate that Allen had any criminal charges laid against him in relation to his employment with the City; (

c) the City does not have records on its HASTUS software system of any “formal” complaints or negative reports about Allen’s driving while employed with the City. Based on the City’s responses, it is unclear whether there are any informal complaints in the

Employee Records. Also, there was one complaint in 2015 documented by a customer, which was denied by Allen, that he grabbed a customer by the jacket (the incident report has now been produced by the City); (

d) the City’s information is that Allen resigned of his own accord and moved outside the Province at the time of his resignation; (

e) Allen was involved in three previous accidents in 2010 and 2011 while operating a City transit bus, two of which were determined to be “non- preventable”. The City produced incident reports related to those accidents; (

f) it was the City’s practice to put transit driver’s on leave if a transit driver provided any information to the City that would impact the driver’s ability to drive a City transit bus, and would stay on leave until the driver could be cleared to resume duties; (

g) Allen was placed on a leave of absence from October to December 2010 for a workplace injury which was the subject of a Worker’s Compensation Board (WCB) claim. The details surrounding the WCB claim were not known to the City’s affiant responding to the Interrogatories; (

h) Allen was placed on leave from March to July 2015 for a workplace injury (non-driving injury) which was the subject of a WCB claim. The details surrounding the WCB claim are apparently not in Allen’s employee file, although he was cleared to resume duties in July 2015, based on a “Calgary Transit Refresher Evaluation” before returning to work. The Calgary Transit Refresher Evaluation has now been produced by the City; (

i) Allen was on a medical leave of absence from August to November 2015. The City’s affiant stated “I have been advised that he received medical clearance to return to work with modified duties on November 3, 2015”, but does not explain who advised him of this or what information or records the City has about this leave of absence or the medical clearance; and (

j) the City’s affiant stated that “based on my review of Calgary Transit’s records”, the City was not aware of any mental health or substance abuse issues of Allen that could have impacted his ability to drive a transit bus.

The specific records reviewed are not identified. [ 22 ] This information indicates that Allen, in the year prior to the Accident, was alleged to have grabbed a customer by their jacket (which was denied by Allen), that Allen was on leave on two occasions for approximately an aggregate of 8-9 months in the year prior to the Accident, the details of which are presently unknown to the Court, and that Allen was apparently cleared through some processes to return to work on unexplained modified duties only 17 days before the Accident.

There is evidence that, in the Accident, the Plaintiff honked her horn more than once, and this was either not heard or was ignored by Allen and he side-swiped her. [ 23 ] The City does not assert that there are no other Employee Records available in its control. The City has not explained in its evidence exactly what Employee Records or types of Employee Records it has. The City’s position is that Allen’s Employee Records are irrelevant or immaterial, and the request is a fishing expedition.

I disagree. [ 24 ] The City’s argument, in my view, may also go to the question of air of reality or the strength of the Plaintiff’s underlying claim for punitive damages, not whether the requested records will significantly help determine, or ascertain evidence that will significantly help determine, one of the issues in the action. [ 25 ] “Air of reality” is often referenced in criminal law in determining whether a defence should be put to a jury, where the test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit: R v Cinous , 2002 SCC 29 at para 49 .

In my view, in the context of civil records disclosure, proposed disclosure will be without any “air of reality” if, assuming that the proposed disclosure is ordered and contains the information expected by the requesting party, that no reasonable trier of fact would find that it significantly helps determine, or ascertains evidence that significantly helps determine, an issue raised in the pleadings. In my view, there is an air of reality to the Plaintiff’s records request. [ 26 ] Any alleged lack of merits of the punitive damages claim should not be overemphasized at this stage.

The potential merits of the underlying claim, and the evidence to support the remedy of punitive damages, would have been an important consideration before the court when the Plaintiff’s application to amend the Statement of Claim to add a punitive damages remedy was heard: Balm v 3512061 Canada Ltd, 2003 ABCA 98 at paras 25 and 63 ; Pace v Economical Mutual Insurance , 2021 ABCA 1 at paras 2-6 . However, now that the amendment has been granted, this disclosure application is not about deciding the merits of the claim or the remedy sought.

The merits will be dealt with at trial or some other application, and I make no further comment on the merit or lack of merit of the pleaded punitive damages remedy in this case. If the Plaintiff is ultimately unsuccessful in obtaining punitive damages, that is a matter which can be addressed in costs at or after trial when the full factual context is available. [ 27 ] In my view, Allen’s Employee Records in the control of the City are relevant and material to the issue of whether punitive or exemplary damages are appropriate and to any quantum of them in the event they are appropriate.

Whether Allen’s Employee Records disclose information that is helpful to the Defendants or the Plaintiff, they will reasonably be expected to significantly help determine the factual issue of Allen’s fitness to drive a transit bus, the City’s knowledge of that, and the City’s practices to ensure its transit bus drivers are fit to drive.

Further, Allen’s Employee Records may reasonably be expected to help ascertain other evidence that may significantly help determine the issue of punitive damages (for example, evidence that may be in the control of WCB or Allen in respect of his leaves of absences, whether the underlying reason for those leaves of absence impacted his fitness to be a City transit driver, and evidence respecting the processes by which he was cleared for work). [ 28 ] I further find that the Plaintiff’s application is not a fishing expedition.

It is not an onerous request, and is not abusive, excessive or unnecessarily expensive or disproportionate. The Plaintiff has disclosed a rational strategy in which the disputed Employee Records play a material part, and which is not merely theoretical, speculative or without an air of reality. Further, in my view, disclosure of the records will serve the purposes of disclosure set out in rule 5.1. [ 29 ] The City raised concern about producing Allen’s confidential information. The confidentiality of non-privileged records is not

normally a basis to refuse disclosure and production. Confidentiality of records is protected by the implied undertaking which prohibits collateral use of the fruits of discovery: Juman v Doucette , 2008 SCC 8 ; Dreco Energy Services Ltd. v. Wenzel Downhole Tools Ltd , 2008 ABCA 36 at paras 2-5 . The Plaintiff is a member of the Law Society of Alberta that practices family litigation, and is well aware of the implied undertaking.

If the City has other concerns it believes warrant a confidentiality order, it may apply for one. [ 30 ] Further, to address the City’s concerns, I grant the City leave of this Court to redact specific personal information that is not relevant to the issue of Allen’s driving history or his medical or other fitness to be a transit driver, that may be confidential to Allen (for example, information such as his social insurance number, payroll information or home address). The Plaintiff expressed her agreement in argument to avoid unnecessary disclosure of irrelevant personal information.

I encourage the parties to work to reach agreement on which unnecessary components of personal confidential information can be redacted. V.

Conclusion [ 31 ] The City is ordered to disclose in a supplemental Affidavit of Records, and produce, to the Plaintiff the City’s Employee Records for Allen in the City’s control, whether contained in a formal employee file or otherwise in the City’s control, whether in Calgary Transit’s control or otherwise in the control of the City, including but not limited to any records related to Allen’s three leaves of absences prior to the Accident, and his clearance to continue work after those absences. [ 32 ] Costs of this application shall be in the cause. Heard on the 19 th day of January, 2023.

Dated at the City of Calgary, Alberta this 2 nd day of February, 2023. M.A. Marion J.C.K.B.A. Appearances: Linda Goold Self-Represented Litigant Ashley Hahn for the Defendants