Green v Redlick, 2023 ABKB 19

Court of King’s Bench of Alberta Citation: Green v Redlick, 2023 ABKB 19 Date: 20230110 Docket: 1303 01344 Registry: Edmonton Between: Carol Green Plaintiff - and - Jack Redlick and Michael J. Boyd, Chief of the Edmonton Police Service Defendants Corrected judgment: A corrigendum was issued on January 11 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Applications Judge L.R.

Birkett _______________________________________________________ [ 1 ] On February 5, 2011, while responding to an active call about armed individuals evading the police, Constable Jack Redlick shot Cyrus Green. Cyrus succumbed to his injuries and died. Carol Green claims the shooting of her son was a wrongful act and without lawful justification, for which she seeks damages pursuant to the Fatal Accidents Act . [ 2 ] The statement of claim in this action was filed on January 28, 2013, and amended on February 8, 2013, to name Jack Redlick.

There has been disclosure of records. [ 3 ] The plaintiff seeks further disclosure and to amend the statement of claim to raise the issue of Constable Redlick’s mental health and psychological fitness for duty. The defendants seek security for costs. These applications are to be scheduled concurrently for a special chambers hearing. Affidavits have been filed by the parties in support of, and in response to, the applications. [ 4 ] Prior to scheduling the special chambers hearing, the defendants ask the Court to strike parts of the plaintiff’s affidavits

because the affidavits contain frivolous, irrelevant or improper information. By agreement of the parties, the application to strike wasconsidered as a with-notice desk application. This is my decision on that application. Issue [5] Rule 3.68(4)(

c) of the Alberta Rules of Court permits the Court to strike out all or part of an affidavit that contains frivolous,irrelevant or improper information. [6] The plaintiff’s affidavits contain information about Constable Redlick’s mental health and about other incidents where use ofunnecessary force was alleged.

The defendants say this is prohibited character evidence and irrelevant to the litigation over whether theshooting was lawfully justified or a wrongful act. [7] The issue for this application, is whether the potential probative value of the information tendered as evidence by theplaintiff outweighs the prejudicial effect. I am asked to strike those parts of the affidavit where it does not. The Law and Context Amending Pleadings [8] Pursuant to rule 3.65, the Court may give permission to amend a pleading before or after close of pleadings. The Rules setout the technical requirements to amend pleadings.

The case law sets out the factors the Court should consider in exercising itsdiscretion, including the nature of the evidence required to support a proposed amendment. [9] After pleadings close, the amending party is required to produce some evidence in support of the allegations in theamendment, particularly “to amend a pleading to allege new facts of substance”.

See Waquan (Mikisew Cree First Nation) v Canada,2002 ABCA 110 at para 26. “While some evidence is needed to amend after the close of pleadings, the evidentiary threshold is low.”See Attila Dogan Construction and Installation Co Inc v AMEC Americas Limited, 2014 ABCA 74 at para 24. [10] Further guidance on the nature of the evidence required to support a proposed amendment is found in the reasons of JusticeCôté in Balm v 3512061 Canada Ltd, 2003 ABCA 98 at paras 25 and 26: When evidence is needed to support a significant amendment to a pleading, before the limitation period has expired, what evidence isneeded?

The Waquan (Mikisew) case, supra, does not address the point (except for some discussion about use of discovery evidence). Ihave not found much direct authority on the topic. (One reason is that England, British Columbia, and the Federal Court of Canadarequire no evidence at all.) One case says that the test is whether in the evidence filed to support the proposed amendment “facts werealleged from which it could be inferred that” the facts to be pleaded occurred: Wil-Ton Constr. v. Amerada Minerals Corp. (1989) 1989ABCA 213 , 98 A.R. 296, 304 (para. 43), 69 Alta. L.R. (2d) 285 (C.A.).

Chief Justice Moore held that the evidence need not beenough to prove the new allegations on a balance of probabilities: Anderson Expl. v. Pan-Alberta Gas (1998) 1998 ABQB 456, 224 A.R. 109, 112 (para. 14). Possibly Kent J. was stating a standard when she called for “more than a scintilla of evidence”,in Firemaster Oilfield Services v. Safety Boss (Can.) (1993) (June 14 ’96) J.D.E. 9303-20358, unrep. She said that “everyone is inagreement that the threshold is low”: ibid. The chambers judge here adverted to that standard of proof (in his paras. 15, 16). Hearsayclearly suffices: Marathon Constr. (Alta.) v.

Bank of N.S. (1985) (SK CA), 47 Sask. R. 241 (C.A.). The appellants’factum does not cite any authority which contradicts those propositions. Of course any admissible evidence will do.… [11] Master Robertson summarized the reasoning in Balm in Geophysical Service Incorporated v Nwest Energy Corp, 2014ABQB 205 at paras 54 and 55: However, particularly where new defendants are proposed to be added, the applicant must provide some evidence of the claim as againstthem, even if it is contradictory: Balm, para 13, 20 and 24.

Any form of admissible evidence will do, even if the conclusion to be drawnfrom the evidence is uncertain, it is hearsay, and if the evidence does not exclude a possible defence: Balm at para. 26 and 27. And theevidence need only be “modest”: Balm, at para 29. The respondents here agree that the threshold for evidence is a low one. Nonetheless, the Alberta Court of Appeal has recently confirmed that there must be some meaningful evidence. That is, the bar may below, but there is still a bar: Attila Dogan Construction and Installation Co. Inc., v.

AMEC American Limited, 2014 ABCA 74. [12] The cases suggest the evidence in support of a significant amendment must be admissible and meaningful; the evidence mustallege facts from which it could be inferred that the facts to be pleaded in the proposed amendment occurred.

The evidence may bemodest, contradictory or hearsay; the conclusion to be drawn from the evidence does not have to be certain. [13] Carol Green’s application, filed August 7, 2020, seeks leave to allow further amendments to the statement of claim to allegeConstable Redlick was not psychologically fit to carry out the duties of a police officer and the lack of fitness ought to have beenassessed and monitored by the Chief of Police. [14] The evidence to be relied on for the application to amend is contained in the affidavit of Carol Green, sworn September 27,2019, in response to the defendants’ application for security for costs.

The affidavit attaches exhibits to support the proposedamendments to the statement of claim. [15] The defendants state this affidavit contains prohibited and prejudicial character evidence and irrelevant information. The

exhibits have no probative value to the action as they do not answer the question of whether the shooting was lawfully justified. [ 16 ] I review the nature of the evidence expected and permitted on an application to amend pleadings, not to decide if the amendments proposed by Carol Green should be allowed, but as a framework to decide if certain information in the affidavit filed in support of the amendments should be struck or left for the consideration of the judge hearing the application. Disclosure of Information [ 17 ]

Part 5 of the Rules of Court provides for the disclosure of information. Rule 5.11 allows the Court, on application, to order a record be produced if a relevant and material record under the control of a party has been omitted from an affidavit of records.

Pursuant to rule 5.2, a record or information is relevant and material only if it could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. [ 18 ] Carol Green’s application, filed March 15, 2017, seeks to compel Constable Redlick to produce all records relating to the mental health issues he was experiencing when he assaulted a prisoner in his care on January 15, 2012.

The application also seeks to compel the Chief to produce any police records relating to the need for mental health services for, and any assistance provided to, Constable Redlick. [ 19 ] The affidavit of Destinee Manke, sworn March 16, 2017, was filed in support of the plaintiff’s application to compel these further records and attaches exhibits to provide the necessary evidentiary foundation. [ 20 ] The defendants state this affidavit contains prohibited and prejudicial character evidence and irrelevant information.

The exhibits have no probative value to the action as they do not answer the question of whether the shooting was lawfully justified. [ 21 ] Counsel for Carol Green refers to Master Funduk’s commentary on disclosure of records in Franco v Hackett , 2000 ABQB 241 , at para 34 : … But the test is relevant and material. That now cut out the old fishing expeditions. There is no fishing without first evidence that there are fish in the pond and a reasonable amount of fish. The Defendant has not satisfied me of that.

Conjecture is not sufficient. [ 22 ] The fishing analogy is carried forward by Justice Acton in Cheyne v Alberta , 2003 ABQB 244 at para 33 : I find Master Funduk’s fishing analogy in Franco v Hackett , 2000 ABQB 241 very apt. As he stated, one is entitled to fish if one can show that there are a reasonable amount of fish in the pond. As outlined in the facts above, the Plaintiff has clearly shown that there are fish in Her Majesty’s pond. In fact, these “fish” are no mere minnows, rather they are sharks. Who knows what else might be lurking in the seaweed?

The Plaintiff is entitled to go on a fishing expedition to find out. [ 23 ] The Court of Appeal in Kaddoura v Hanson , 2015 ABCA 154 at para 15 , confirmed that relevant and material records must be disclosed even to prove facts using inferences and circumstantial evidence, such as to prove the state of mind of a litigant.

However, “Production of records is not required just because some remote and unlikely line of analysis can be advanced, and it will not be ordered to support lines of pretrial discovery that are unrealistic, speculative, or without an air of reality…” [ 24 ] At para 17, the Court of Appeal did not accept the argument that the party seeking disclosure was on a “fishing expedition” stating: … The right to disclosure of records does not depend on the litigant proving with certainty that some relevant records exist.

Rather, the onus is on the other litigant to review its own records and prepare an affidavit of records listing relevant records that do exist… When it comes to record disclosure, if there are fish, the respondents [seeking disclosure] do not have to go fishing for them.” [ 25 ] I review the nature of disclosure of records expected, not to decide if the mental health records sought by Carol Green from Constable Redlick and the Chief ought to be produced, but as a framework to decide if certain information in the affidavits filed in support of the application to compel these records should be struck or left for the consideration of the judge hearing the application.

Security for Costs [ 26 ] Rule 4.22 provides that the Court may order a party to provide security for payment of a costs award if the Court considers it just and reasonable to do so, taking into account all of a list of considerations, including in subsection (

c) the merits of the action in which the application is filed and (

e) any other matter the Court considers appropriate. [ 27 ] The defendants’ application, filed September 24, 2018, seeks an order requiring the plaintiff to post security for costs as a condition of continuing with the action. Carol Green swore an affidavit September 27, 2019, in response to the application, deposing she is not able to post any security for costs such that an order for security for costs will effectively mean the end of the action. [ 28 ] Ms.

Green’s affidavit attaches exhibits to reinforce her belief it was an excessive and unreasonable use of force for Jack Redlick to shoot and kill her son. [ 29 ] Counsel for Ms. Green argues public interest weighs against an order that Ms. Green be required to post security for costs. [ 30 ] Counsel for the defendants argues the information in Carol Green’s affidavit is prejudicial and of no probative value to this action as it does not answer whether the shooting was lawfully justified. They further argue the affidavit contains inadmissible opinion evidence, commentary, and argument.

[31] I review the considerations to be taken into account on an application for security for payment of costs and Ms.

Green’sargument, not to decide if she should post security for costs or if her action has merit, but as a framework to consider the affidavit filed inresponse in light of the application to strike all or part of it. [32] Should the whole affidavit be available for the judge hearing the defendants’ application for security for costs to consider themerits of the action in which the application is filed and other appropriate matters, or should those parts of the affidavits which have noprobative value to the action and are prejudicial or otherwise improper be struck?

Striking Parts of an Affidavit [33] Pursuant to rule 3.68(4)(c), the Court may strike out all or part of an affidavit that contains frivolous, irrelevant or improperinformation.

The issue is whether the potential probative value of the information outweighs the prejudicial effect. [34] The defendants say the information in the affidavits tendered by the plaintiff is irrelevant and improper; it is prejudicial badcharacter evidence with no probative value. [35] The plaintiff says the information in the affidavit of Destinee Manke, sworn March 16, 2017, and the affidavit of Carol Green,sworn September 27, 2019, is evidence tendered solely for consideration in connection with the outstanding applications to compelfurther records, amend the statement of claim and post security for costs; the information and exhibits are admissible for the limitedpurpose of determining the applications.

The affidavits do not tender evidence for the purpose of determining the ultimate issues in thelitigation of whether Constable Redlick was justified in shooting Cyrus Green and whether the defendants were otherwise responsible inlaw for Cyrus’s death. [36] Counsel for the plaintiff argues the information has probative value and should be left in the affidavits to be weighed by thejudge hearing the outstanding applications.

The defendants say the information is so prejudicial it should be struck before thoseapplications are heard. [37] Several cases illustrate this tension between exercising the procedural remedy under rule 3.68(4) to remove irrelevant orimproper information from an affidavit, thereby ensuring fundamental evidentiary rules are met, and not striking that information fromthe affidavit, thereby allowing the judge to consider the evidence in the context of the substantive application and to determine whetherthere is a foundation on which to exclude it. [38] A review of the fundamental evidentiary rules and the basis for excluding evidence is helpful.

Rules of Evidence [39] In Orr v Alook, 2019 ABQB 713, Justice Friesen summarized several cases considering Rule 3.68(4), after first setting out theevidentiary principles in paras 19 and 20: The fundamental legal principles that apply in the present application are found in the rules of evidence. Those rules say that evidence –even illegally or unethically obtained evidence – is prima facie admissible if it is relevant to a material issue in the case.

See: Paciocco, David M. and Stuesser, Lee, The Law of Evidence, 7th ed, (Toronto: Irwin Law, 2015) at 27 – 52 and R v B(FF),(SCC), [1993] 1 SCR 697, 79 CCC (3d) 112 [B(FF)] at 136. If Mr. Hirsche’s evidence is relevant, then it is admissible unless it is subject to a specific exclusionary rule or rejected by the Court on adiscretionary exclusionary basis. See: Gray v ICBC, 2010 BCCA 459 at para 1, quoting from McLachlin J’s (as she then was) decisionin R v Seaboyer, (SCC), [1991] 2 SCR 577 at paras 42 – 45 and B(FF) at 136.

If admissible, the further question of howthat evidence will be considered by the trial judge is a question of weight. [40] Justice Friesen found no exclusionary rules applied in the Orr case and, after reviewing the case law, concluded theadmissibility of and weight to be given to the affidavit in question should be determined by the judge hearing the

summary trial, withthese comments at paras 32 and 33: While it is clearly open to a party to seek a preliminary ruling under Rule 3.68(4) to strike all or part of an affidavit, the application ofRule 3.68(4) is discretionary. … Considering all the facts and circumstances in the present case, and the nature of the arguments that have been raised in relation to theadmissibility and/or weight to be given to the Hirsche Affidavit, or portions of it, I find that all the issues raised by the Plaintiff on thisapplication should be determined by the

summary trial judge. The

summary trial judge will be in the best position to rule on those issuesas he or she will have the benefit of knowing the facts more fully, and will be able to balance the competing arguments moreappropriately than I am able to in a special chambers’ application, on a preliminary basis.… [41] In Questor Technology Inc v Stagg, 2021 ABQB 636, Justice Nixon described the law of evidence in paras 35 and 36: As a general comment, the law of evidence governs the presentation of facts before the court.

Its purpose is to facilitate the introductionof all logically relevant facts into a judicial hearing, without sacrificing any fundamental policy of the law which may be of more importance than the ascertainment of the truth: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed (Toronto:LexisNexis, 2018) at §1.37 [Sopinka]. To the extent possible, the appropriate approach to evidentiary questions should be to admit what is relevant and material, but no more.As a result, if a particular matter is neither relevant nor material, it should be excluded from the judicial forum.

[ 42 ] Justice Nixon described the purpose of affidavit evidence in para38: … The purpose of affidavit evidence is to place the necessary facts before the court.

As a result, affidavits "should not contain argument, opinions or conclusions", and such information may be struck as being frivolous irrelevant or improper: Alberta Treasury Branches v Leahy , 1999 ABQB 185 at para 84 . [ 43 ] Justice Nixon referred to the Orr case in outlining the Courts’ treatment of rule 3.68(4) in paras 41 to 44 of Questor Technology : The judicial guidelines stipulate that it is within the discretion of the Court to determine whether it is necessary to hear an application to strike discretely, in advance of a substantive application.

Since it is within the scope of the Court to ignore evidence that is irrelevant or improper, in certain circumstances it may not be necessary to strike out material that can be disregarded by the Court: Veselic-Titheridge v Titheridge , 2007 ABQB 456 at para 16 . Concerning questions of relevance, the judge considering the substantive application is usually in the best position to determine the characterization and admissibility of evidence: Murphy v Cahill , 2012 ABQB 793 at para 33 .

That is the case because the judge will have the benefit of knowing the case more fully,and will be better situated to balance the competing arguments: see Orr v Alook , 2019 ABQB 713 at para 33 [ Orr ]. I acknowledge that Courts routinely exercise their discretion to hear an application to strike at the same time as the substantive application is heard: Orr at paras 27-33 . I also acknowledge that the case management judge may hear a strike application discretely and resolved evidentiary issues in advance of cross-examination: Orr at paras 28-29 .

When there is uncertainty concerning the nature of the disputed evidence, the most appropriate way to deal with the potential inadmissibility is often through submissions at the substantive hearing on the issue of whether the material is either inadmissible or that it should be given no weight: Murphy v Cahill , 2012 ABQB 793 at para 34 .… [ 44 ] Justice Ho referred to the Orr case in Abel v Modi , 2020 ABQB 530 when considering an application to strike the entirety of an affidavit on the grounds that the late filing of the affidavit constituted an abuse of process; the affidavit was irrelevant to the issues raised in the upcoming

summary dismissal applications; and the contents of the affidavit were primarily unsupported hearsay or inadmissible evidence. [ 45 ] Justice Ho struck certain paragraphs which contained argument, opinion, or conclusions as being improper, stating at para 41: “… litigants’ rights to procedural remedies and adherence to fundamental evidentiary requirements should be safeguarded.…” [ 46 ] However, Justice Ho declined to strike other paragraphs of the affidavit which the defendants argued were irrelevant to the substantive issues.

Those paragraphs addressed an Alberta Securities Commission hearing and a settlement agreement, attaching the related exhibits, including the ASC Notice of Hearing, the Settlement Agreement, and the ASC News Release. The defendants argued the Settlement Agreement should not be admitted into evidence because it originated from a regulatory proceeding which served an entirely different purpose, involved different parties, and was irrelevant to the issues in the

summary dismissal applications. The plaintiffs argued the exhibits are public documents which should be admitted as evidence and they were submitted merely as information of the plaintiffs, and not as admissions in the civil litigation proceedings. On finding the paragraphs and exhibits admissible, subject to future arguments respecting weight, Justice Ho stated in paras 33 and 34 of Abel : I wish to make clear that by ruling that the Settlement Agreement is admissible, I have not determined that paragraphs 1 to 69 of the Settlement Agreement should be accepted as admissions in this litigation.

Rather, the weight that should be given to the Settlement Agreement and its contents is a determination that must be made in the specific context of how the Respondents wish to use the Settlement Agreement as evidence. Given that there were different parties to the Settlement Agreement and having regard for the circumstances leading to the Settlement Agreement, it is still possible that the Settlement Agreement and its contents will be ascribed little or no weight.

This is a matter that should be addressed in detail by the parties when the Respondents make submissions relying on the contents of the Settlement Agreement. With respect to the Applicants’ argument that the Settlement Agreement is irrelevant to the issues in the

Summary Dismissal Applications, the test for admissibility based on relevance is a low one. Here, the Applicants have also brought, in the alternative, applications for the payment of security for costs. Rule 4.22 addresses the matters to be considered in relation to a security for costs application which includes the merits of the action in which the application is filed and any other matter the Court considers appropriate.

Therefore, in my view, the Settlement Agreement meets the threshold test for relevance and I disagree with the Applicants’ blanket assertion that the Settlement Agreement is irrelevant to the current issues before the Court. [ 47 ] I conclude from the comments in these cases that the information in an affidavit or an exhibit is to be considered in the context of the litigation and the current issues before the Court. The rules of evidence require the information to be relevant and material and not contain argument, opinion or conclusions.

Otherwise, pursuant to rule 3.68(4)(c) , the Court may strike out all or part of an affidavit that contains frivolous, irrelevant or improper information. [ 48 ] The right to this procedural remedy and adherence to fundamental evidentiary requirements should be safeguarded. (Para 41 Abel ).

Inadmissible evidence and impermissible statements should be struck. [ 49 ] The test for admissibility based on relevance is a low one. “ The appropriate approach to evidentiary questions should be to admit what is relevant and material, but no more.” ( Para 36 Questor Technology ). [ 50 ] The nature of the application and the intended use of the information should be considered.

What is relevant and material or frivolous and improper must be determined in context. “ When there is uncertainty concerning the nature of the disputed evidence, the most appropriate way to deal with the potential inadmissibility is often through submissions at the substantive hearing on the issue of whether the material is either inadmissible or that it should be given no weigh”. ( Para 44 Questor Technology ).

[51] The judge hearing the substantive application “will be in the best position to rule on those issues as he or she will have thebenefit of knowing the facts more fully, and will be able to balance the competing arguments more appropriately…” than can bedetermined on a preliminary basis. (Para 33 Orr). [52] Where the information in the affidavit or exhibits is prejudicial with no probative value, it may be appropriate to strike all orpart of the affidavit on a preliminary basis as being irrelevant and improper, pursuant to rule 3.68(4)(c).

Prohibited Character Evidence [53] The defendants say the information in the affidavits tendered by Carol Green is irrelevant and improper; it is prejudicial badcharacter evidence with no probative value.

It ought to be struck prior to the hearing of the outstanding applications. [54] Justice Lee discussed the issue of admissibility of character evidence in a lawsuit for wrongful termination and defamation inElgert v Home Hardware Stores Limited, 2010 ABQB 35, concluding that evidence of a person’s character and reputation may not berelevant to the specific incident in question and not probative of a fact in issue.

A judge must assess the weight to be attributed andbalance the probative value of such evidence against its prejudicial effect. [55] Justice Lee’s analysis in Elgert is set out at paras 4 through 6: Generally speaking character evidence is inadmissible in civil cases as the evidence is usually not probative, and often leads tocircumstantial proof of a collateral fact in issue.

In Sopinka, Lederman and Bryant’s The Law of Evidence in Canada 2d ed. (Markham, Ont.: Butterworths, 1999), the authors state thefollowing: 10.24 A strong reaction against the use of evidence of character to circumstantially prove a fact in issue has resulted in its prohibition incivil cases, subject to some limited exceptions. The modem rationale for its exclusion was enunciated in Attorney-General v.Radloff [(1854) 10 Exch. 84, 156 E.R. 366].

In the course of his judgment, Martin B. made the following statement [at page 371]: “In criminal cases evidence of the good character of the accused is most properly and with good reason admissible in evidence, becausethere is a fair and just presumption that a person of good character would not commit a crime; but in civil cases such evidence is withequal good reason not admitted, because no presumption would fairly arise, in the very great proportion of such cases, from the goodcharacter of the defendant, that he did not commit the breach of contract or of civil duty alleged against him.” This principle is dealt with in Justice Slatter’s decision in Robertson v.

Edmonton (City) Police Service, 2005 ABQB 499 atparagraphs 12 and 14: It should first be noted that general evidence of good character is rarely admissible in civil cases unless it amounts to similar factevidence. This is simply because such evidence is rarely probative. The fact that a litigant may have done good deeds on a prior occasionis little evidence that they did not do a bad deed on this particular occasion: Attorney General v. Radloff (1854), 10 Exch. 84, 156 E.R.366 (Eng. Exch.).

Evidence of good character is also generally not admitted because it violates the related rule against proof of collateral facts of marginalrelevance. The rule is summarized in Delisle and Stuart, Evidence: Principles and Problems, 6th ed., (Toronto: Carswell, 2001) at pg.125: . . . If the evidence is of the person’s general character or personality trait, the court recognizes that, even though the person’s characteror trait has relevance, the probative value may be outweighed by competing considerations and should be excluded.

The court recognizesthat even so- called “good people” sometimes do bad things and “bad people” do good things. Plumbing the depths of their charactermay not be worth the time and trouble. Determining receivability is thus seen to be a matter for the trial judge’s discretion where sheweighs probative value against the dangers of consumption of time, confusion of the issues and prejudice to the proper outcome of thetrial. [Emphasis added.] [56] One of the limited exceptions to the use of character evidence to circumstantially prove a fact in issue is similar fact evidence.

Similar Fact Evidence Exception [57] In exceptional circumstances, evidence of a predisposition to act in a certain way may be permitted “if it is relevant to an issuein the case and its probative value outweighs its prejudicial effect”. See Gentles v City of Toronto Non-Profit Housing Corporation, (ON SC) at para 16: The use of evidence of character to circumstantially prove a fact in issue is prohibited in civil cases: Sopinka et al. Law of Evidence in Canada 2nd ed., paragraphs 10.23 to10.29. In this context, character refers to the disposition or propensity to act in a certain way.

Ineffect, the proffered evidence proposes to prove that these guards assaulted these plaintiffs by showing that (

a) other Intelligarde guardshave sometimes assaulted other people in other social housing contexts; and (

b) that some other guards may have been encouraged toimproperly arrest other persons on other occasions: therefore Intelligarde guards tend to assault and improperly arrest people; thereforethese Intelligarde guards did so. Such reasoning is illogical and improper and in my view the evidence is clearly inadmissible. It isexcluded by the general character evidence prohibition and is not within the similar fact exception to that prohibition.

That exceptionpermits the admission, in exceptional circumstances, of evidence of a propensity to act in a certain disreputable way if it is relevant to anissue in the case and its probative value outweighs its prejudicial effect: Sopinka et al, supra, at paragraph 11.3. This evidence isirrelevant to the natural propensities of the guards themselves; it has potential relevance only to them as employees of Intelligarde. Buteven if the propensity of the company was established, that tells us nothing of value as to the probable acts of these particular individuals

on the night in question, particularly when the proffered evidence does not confirm that they received any such instructions as are alleged. [ 58 ] I review the fundamental rules of evidence, prohibited character evidence, and the exception for similar fact evidence, not to determine if this evidence is relevant and admissible in the ultimate trial of Constable Redlick for responsibility for Cyrus Green’s death, but to determine what evidence, if any, should be struck from the affidavits filed by the plaintiff for the outstanding applications to amend pleadings, compel records, and require security for costs.

Analysis and Decision Application to Amend Statement of Claim [ 59 ] Carol Green filed an application August 7, 2020, seeking leave to amend the statement of claim to plead: “As at February 5, 2011, Redlick was not psychologically fit to carry out the duties of a police officer.

This lack of fitness was known or ought to have been known by the Chief of Police, yet he failed to take any or adequate steps to protect members of the public from Redlick.” [ 60 ] The particulars of negligence on the part of Constable Redlick proposed in the amendment include failing to take reasonable steps to manage his mental health prior to February 5, 2011 and failing to remove himself from active duty when he knew or ought to have known he was not psychologically fit to carry out his duties as a police officer in a safe manner. [ 61 ] The particulars of negligence on the part of the Chief proposed in the amendment include failing to reasonably assess and monitor Constable Redlick’s fitness for duty; failing to investigate concerns raised about Constable Redlick’s violent and abusive propensities prior to February 5, 2011; and failing to provide reasonable instruction to Constable Redlick with respect to use of force and alternatives to the use of lethal force. [ 62 ] The evidence to be relied on for the application to amend is contained in the affidavit of Carol Green, sworn September 27, 2019, and attached exhibits.

The affidavit is 12 paragraphs, with 7 exhibits. [ 63 ] The defendants seek an order striking most of the content and all the exhibits from this affidavit, arguing that paras 8 through 12 and the associated exhibits are irrelevant, contain prohibited or prejudicial character evidence, and have no probative value to the action as they do not answer the question of whether the shooting was lawfully justified. [ 64 ] Carol Green deposes in para 5 of this affidavit she believes it was an excessive and unreasonable use of force for Jack Redlick to shoot and kill her son. “My belief is reinforced by information I have learned through the media about Jack Redlick’s unnecessary violence during his career as a police officer, as well as from reviewing the Affidavit Destinee Manke filed on March 16, 2017 in this action and the exhibits appended to that Affidavit.” [ 65 ] The defendants also seek an order striking paras 2 and 3 and exhibits 1 and 2 of the March 16, 2017 affidavit of Destinee Manke.

These exhibits are the same as exhibits 1 and 4 attached to Carol Green’s affidavit. [ 66 ] Counsel for the plaintiff and Counsel for the defendants provide detailed argument in support of their relative positions in their written submissions. I will capture the details where necessary to explain my analysis and support my conclusions on each of the impugned paragraphs and exhibits.

Disciplinary Decision [ 67 ] Exhibit 1 to the affidavits of Carol Green and Desiree Manke is a Disciplinary Decision dated August 19, 2013 in disciplinary proceedings against Constable Redlick pursuant to the Police Act and the Police Service Regulation relating to an assault on a prisoner in his care. The assault took place on January 15, 2012, within the year following the fatal shooting of Cyrus Green. [ 68 ] In para 6 of her affidavit, Carol Green states this Disciplinary Decision describes the actions of Constable Redlick as “nothing less than street justice”.

She notes Constable Redlick was not dismissed for this offence “because he claimed to have been labouring through an episode of a major depressive disorder, and that a doctor gave evidence in the proceeding that Jack Redlick was compromised by a significant mental illness during the material time for the alleged offenses.” [ 69 ] At para 22 of the Written Submissions filed on behalf of Carol Green, Counsel points out the Disciplinary Decision references medical evidence relied upon in finding Constable Redlick had been suffering from a major depressive disorder in 2011: “The decision does not specifically state when in 2011 such health-related issues began.

However, it stands to reason that such psychological condition may have been present when Constable Redlick shot Cyrus, and may have impacted upon his decision to do so.” Counsel submits this is something to be explored in the discovery phase of the litigation, with the benefit of the associated medical evidence. [ 70 ] Counsel for the plaintiff further points to information in the Disciplinary Decision that should be considered on the application to amend the claim against the Chief.

The Disciplinary Decision notes Constable Redlick accessed some internal resources to deal with his health-related issues in 2011 and concludes: “The Service should take part of the responsibility for the misconduct as well. The Constable had some identified mental health issues, but did not receive quite enough help. To some degree, this was his fault. He thought that he could just simply “power” through his problems.

Nevertheless, shortly after the incident, he went for an assessment and then presented himself to Human Resources for referral to therapy.” [ 71 ] Counsel for the defendants points to the reference to the medical evidence in the Disciplinary Decision which “indicates that Cst. Redlick’s depression becoming noticeable in the fall of 2011 and gradually intensified, with the 2011 Christmas season being particularly taxing to him. This course of illness also makes it highly probable that Cst. Redlick’s mental status was compromised by

depression during the material time for the alleged offenses… And that this mental illness (ie. depression) contributed to the behaviour in question by undermining his ability for carefully reasoned judgment.” [ 72 ] Counsel for the defendants argues at para 39 of their Submissions: “That Constable Redlick pled guilty in subsequent unrelated disciplinary proceedings, and suffered from a mental illness after the shooting does not bring the parties any closer to determining whether the shooting on February 5, 2011 was a “wrongful act, neglect, or default” pursuant to the Fatal Accidents Act , or whether the shooting was lawful pursuant to sections 25 and 27 of the Criminal Code of Canada .” Counsel submits that “A mental illness, which, on the face of the Disciplinary Decision, “became noticeable” after the shooting, has no bearing on this action.

The Disciplinary Decision is prima facie prejudicial bad character evidence and is a clear attempt at character assassination.” [ 73 ] As I have summarized above, the evidence in support of a rule 3.65 application for a significant amendment must be admissible and meaningful; the evidence must allege facts from which it could be inferred that the facts to be pleaded in the proposed amendment occurred.

The evidence may be modest, contradictory or hearsay; the conclusion to be drawn from the evidence does not have to be certain. [ 74 ] The application before me is not to decide if the amendments proposed by Carol Green should be allowed, but if the evidence or information tendered by Carol Green in support of the amendments should be available for the consideration of the judge hearing the rule 3.65 application. [ 75 ] In deciding whether to strike the evidence or information tendered by Carol Green, the content of the affidavit or exhibit must be considered in the context of the litigation and the current issues before the Court.

The information must be relevant and material and not contain argument, opinions or conclusions. If the content is frivolous, irrelevant or improper, it ought to be struck pursuant to rule 3.68(4)(c). [ 76 ] Inadmissible evidence and impermissible statements should be struck. The test for admissibility based on relevance is a low one; what is relevant and material should be admitted, but no more. See para 36 Questor Technology . [ 77 ] The nature of the application and the intended use of the information should be considered.

It may be more appropriate to have the judge hearing the application to amend the statement of claim determine whether the disputed evidence is relevant and material to the issue before the Court or whether it is inadmissible or should be given little or no weight. See p ara 44 Questor Technology . [ 78 ] Having reviewed Carol Green’s affidavit and the Disciplinary Decision related to Constable Redlick’s assault of a prisoner on January 15, 2012, I find this evidence does allege facts from which it could be inferred that the facts to be pleaded in the proposed amendment occurred.

Constable Redlick was reported to be suffering from a major depressive disorder and a causal connection was found between the depression and the misconduct. [ 79 ] The existence of a major depressive disorder, as described in the Disciplinary Decision, within the year following the shooting of Cyrus Green may be found to be relevant to the claim that Constable Redlick was not at that time psychologically fit to carry out the duties of a police officer and that the Chief of Police ought to have taken adequate steps to protect members of the public. [ 80 ] It is appropriate for the judge hearing the application to amend to consider whether this exhibit and the associated paragraph in Carol Green’s affidavit is relevant to the proposed amendments or merely tendered as improper character evidence.

That judge will be better placed to determine what weight, if any, ought to be given to the information about Constable Redlick’s depression and misconduct in the year following the shooting. [ 81 ] The application to strike the Disciplinary Decision and the associated paragraphs in the affidavits of Carol Green and Destinee Manke is dismissed. CBC News

Article [ 82 ] Paragraph 9 and Exhibit 4 of Carol Green’s affidavit and para 3 and Exhibit 2 of Destinee Manke’s refer to and attach an

article published on the CBC website with respect to other serious allegations of unnecessary violence and abuse of authority on the part of Jack Redlick. This information is tendered in support of the application to amend the statement of claim to allege Constable Redlick was not psychologically fit at the time he shot Cyrus Green. [ 83 ] The defendants apply to have the paragraphs and CBC

article struck, arguing in paras 44 and 45 of their Submissions: “Other than a passing reference to the shooting, the

article is unrelated to this action. The

article provides one sided descriptions of alleged incidents and salacious detail, but, on their face, at least one of the two referenced incidents occurred after the shooting on February 5, 2011. There is no reason to put this evidence before the court other than the character assassination.” [ 84 ] The CBC News

Article is entitled: “Former Edmonton cop Derek Huff blows whistle on brutality, corruption” and was posted September 27, 2013. The

article contains quotes from Derek Huff, a 10-year veteran with the Edmonton Police Service who resigned after he tried to internally expose what he believed to be organized brutality and silence. Huff described watching Constable Redlick viciously beat a handcuffed man named Kozina, reporting what he saw to his sergeant and being told the other reports which were submitted justified Constable Redlick’s actions. Huff said he ultimately went to the deputy chief, and his complaint was investigated. The

article goes on to say: “Since Huff initially reported the alleged beating, Redlick has been investigated for other violent police incidents. In 2011, he shot and killed a 17-year-old aboriginal boy. Police who were there said the teen, Cyrus Green, had fled the scene of a robbery and was threatening them with a knife and a baseball bat. Redlick shot the teen three times. The officer was cleared of wrongdoing, but the boy’s mother is suing him.” The CBC

article then contains a report of the February 5, 2012 assault for which Redlick was disciplined, as set out in the Disciplinary Decision. [ 85 ] The CBC News

Article contains direct quotes and information from a former police officer, Derek Huff who observed Constable Redlick use what he thought was excessive force in an incident which predated the shooting of Cyrus Green and who

experienced what he thought was justification and cover-up on the part of the EPS. [ 86 ] The information in this CBC News

Article contains argument, opinion, and conclusions. Constable Redlick’s character is described in a bad light. However, there are statements made by Derek Huff which may be found to be relevant to an amendment to question Constable Redlick’s psychological fitness at the time Cyrus Green was shot. Again, the judge hearing the application to amend is best placed to discount the information found to be frivolous, irrelevant or improper and only rely on what is relevant and admissible to the issue before the Court.

Application to Compel Records [ 87 ] Carol Green’s application, filed March 15, 2017, seeks to compel Constable Redlick to produce all records relating to the mental health issues he was experiencing which were determined to be causally connected to his misconduct in assaulting a prisoner in his care on January 15, 2012.

The application also seeks to compel the Chief to produce any records in the possession of the EPS pertaining to the identification of the need for mental health services for, and any assistance provided to, Constable Redlick. [ 88 ] The affidavit of Destinee Manke, sworn March 16, 2017, was filed in support of the plaintiff’s application to compel these further records and attaches exhibits 1 and 2 to provide the necessary evidentiary foundation. Exhibit 1 is the Disciplinary Decision, simply attached to the affidavit. Exhibit 2 is the CBC News

Article “with respect to other serious allegations of unnecessar[ ]y violence on the part of Jack Redlick which predate the death of Cyrus Green.” [ 89 ] The application also seeks records over which an objection to produce has been made and for the Court to determine the validity of reductions made to records produced. The defendants do not object to the balance of Destinee Manke’s affidavit and exhibits containing copies of the affidavits of records and correspondence exchanged to show what has been requested and provided to date. [ 90 ] The defendants say it appears Ms.

Green seeks to rely on the mental health records for the truth of their content despite the corresponding paragraphs in the affidavit not being sworn on information and belief. Notwithstanding this significant defect, the defendants made submissions on the basis that the exhibits do constitute evidence for the limited purpose of the application to strike. [ 91 ] The defendants argue these exhibits and therefore the affidavit, contain prohibited and prejudicial character evidence and irrelevant information.

The exhibits have no probative value to the action as they do not answer the question of whether the shooting was lawfully justified. These exhibits and the affidavit of Destinee Manke contain information that is frivolous irrelevant and improper. [ 92 ] Rule 5.11 allows the Court to order a relevant and material record which has been omitted from an affidavit of records be produced.

Rule 5.2 provides that a record or information is relevant and material only if it could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. [ 93 ] At the time the plaintiff filed the application to compel records relating to Constable Redlick’s mental health, the issue raised in the pleadings was whether Cyrus Green was shot and killed by Jack Redlick on February 5, 2011, without lawful justification. [ 94 ] Subsequently, the plaintiff has applied to amend the statement of claim to raise Constable Redlick’s psychological fitness to carry out the duties of a police officer and the Chief’s knowledge and steps taken to protect the public. [ 95 ] These applications will be heard at the same time, both relying on Destinee Manke’s affidavit.

I have already decided Exhibits 1 and 2 should not be struck for the purpose of the judge considering the application to amend. [ 96 ] I am mindful of the fishing analogy case law and the Court of Appeal’s comments in Kaddoura , para 15 . Although relevant and material records must be disclosed to prove facts using inferences and circumstantial evidence, records cannot be compelled for some remote and unlikely lines of analysis or discovery which “are unrealistic, speculative, or without an air of reality…”. [ 97 ] It is not for me to decide whether the requested records should be produced or not.

I have decided the affidavit of Destinee Manke and exhibits should not be struck at this stage and therefore will also be available to the judge considering the application to compel records. Application for Security for Costs [ 98 ] The defendants’ application, filed September 24, 2018, seeks an order requiring the plaintiff to post security for costs as a condition of continuing with the action.

The affidavit of Dave DeMarco, a staff sergeant with the EPS and representative of the Chief, was filed in support of the application to show the plaintiff’s action is without merit and the defendants have a good and meritorious defence to the whole of the action. [ 99 ] Carol Green filed her affidavit September 27, 2019, in response and to which she attaches exhibits to reinforce her belief it was an excessive and unreasonable use of force for Jack Redlick to shoot and kill her son. In addition to the Disciplinary Decision and CBC News

Article already discussed, there are several other documents attached as exhibits. [ 100 ] Counsel for Ms. Green argues there is a demonstrated public interest weighing against an order that Ms. Green be required to post security for costs, including a significant public interest militating in favour of a trial on the merits of the action. [ 101 ] Counsel for the defendants argues the information in this affidavit is prejudicial bad character evidence, with no probative value to this action as it does not answer whether the shooting was lawfully justified. They further argue Ms.

Green’s affidavit contains inadmissible opinion evidence, commentary and argument, the sole purpose of which is to attack Constable Redlick’s character and professional history. [ 102 ] I have already decided Exhibits 1 and 4 and Ms. Green’s commentary in paras 6 and 9 of her affidavit should not be struck and

will be available for the purpose of the judge considering the application to amend. The application for security for costs is being heardat the same time, therefore the information will also be available to be weighed by the judge in that context. [103] I will consider the other exhibits to Carol Green’s September 27, 2019 affidavit and associated paragraphs, taking intoconsideration the specific submissions of counsel for the plaintiff and objections of counsel for the defendants.

Other Exhibits [104] Exhibit 2 is the statement of claim filed January 13, 2014, in the matter of George Petropoulos against Jack Redlick, the Chiefand other police officers arising from the January 15, 2012 assault.

This statement of claim alleges Constable Redlick suffered frompsychological problems which impacted his ability to carry out his functions as a police officer and these psychological problems oughtto have been known by the Chief. [105] The statement of claim sets out the events which gave rise to the disciplinary hearing whereby Constable Redlick wasdisciplined for assault, as reported in the Disciplinary Decision.

The defendants argue the allegations contained within this statement ofclaim are prima facie prejudicial bad character evidence. [106] I find a statement of claim issued in a separate action is not evidence at all; it is a pleading. Although the facts plead in thataction may be similar to the facts Ms. Green wants to plead in her amended statement of claim, they are not similar fact evidence; theyare similar pleadings.

I find Exhibit 2, being the statement of claim in the Petropoulos action, to be improper and it ought to be struckpursuant to rule 3.68(4)(c), along with para 7 of the affidavit. [107] Exhibit 3 is a copy of the Alberta Law Enforcement Review Board decision in Petropoulos v Edmonton (Police Service), 2015ABLERB 6 , 2015 ABLERB 06. Ms. Green deposes in para 8 of her affidavit that this decision sets out the role Jack Redlick’spartner, another member of the EPS, played in covering up obvious misconduct on the part of Jack Redlick on January 15, 2012.

Counselfor the plaintiff argues at para 45 of the Written Submissions this decision is part of the evidence which “collectively, establishes thatthere are credible, serious concerns about a pattern of unlawful behaviour on the part of Constable Redlick; that the service was warnedabout Constable Redlick prior to the time that Cyrus was shot and killed but failed to do anything to protect members of the public fromConstable Redlick…”.

Exhibit 3 is provided to show: “that at least one other officer has been complicit in actively concealing ConstableRedlick’s misconduct”. [108] Counsel for the defendants argues this 2015 decision in relation to the Petropoulos incident which occurred nearly a year afterthe shooting is unrelated and Ms. Green’s commentary alleging another officers role in “covering up obvious misconduct on the part ofJack Redlick” is inadmissible opinion and should be struck. [109] I find the 2015 Alberta Law Enforcement Review Board decision is not unrelated.

The decision of the Review Board includedthe reasons for dismissing Mr. Petropoulos’ appeal of the penalty imposed on Constable Redlick for the assault. After review of thefindings, at para 27 of the decision, the Review Board: “concludes that the penalty levied by the Presiding Officer was reasonable… wenote that the Presiding Officer adverted to Redlick’s admission of guilt, as well as the medical evidence as to his condition and laterrecovery.” [110] As such, and for the same reasons which I have not struck the Disciplinary Decision, I am not striking Exhibit 3.

The AlbertaLaw Enforcement Review Board decision alleges facts from which it could be inferred that the facts upon which the plaintiff relies toshow her claim has merit occurred. Carol Green’s related commentary in para 8 of her affidavit, although expressing her opinion, will notbe struck at this stage. The judge hearing the application for security for costs will be able to determine the weight, if any, to be given tothe decision reported at 2015 ABLERB 6 , 2015 ABLERB 06 and the commentary in the full context of the security for costsapplication when considering the relative merits of Ms.

Green’s claim and the defence. [111] Exhibit 5 to Ms. Green’s affidavit is an

article entitled “EPS releases information regarding recent CBC story about formerofficer”. Ms. Green deposes in para 10 “To the best of my knowledge, the Chief of Police has failed to provide any records [of] theinvestigations referenced in this article.” The

article seems to be an opinion piece; however, the date and author are not noted. Even ifthat information was available, this

article merely summarizes the CBC News

Article attached as Exhibit 4 and makes other comments. Ifind Exhibit 5 contains improper opinion and inadmissible hearsay evidence, as being too far removed from the source of theinformation. I agree with Counsel for the defendant that Exhibit 5 has no probative value. Paragraph 10 and Exhibit 5 should be struck. [112] Exhibit 6, as deposed to in para 11 of Carol Green’s affidavit, “is an

article dated June 2, 2016 indicating that Craig Offin (whois one of the witnesses to the shooting of my son) resigned from the Edmonton Police Service while facing a charge of unnecessary forcein connection with any event in which Jack Redlick was also accused of using excessive force.” The

article summarizes Craig Offin’stestimony at the disciplinary hearing regarding the February 2010 arrest of Kozina. The first paragraph demonstrates the lack ofrelevance to this lawsuit: “Former Const. Craig Offin testified before an Edmonton police disciplinary hearing Wednesday he couldn’tdistinguish which of his colleagues were involved in a 2010 struggle that led to allegations of a police beating.” There are no facts orevidence in this

article which would be relevant or have probative value to the application for security for costs. Exhibit 6 is irrelevantand, along with para 11, should be struck. [113] Exhibit 7 is referenced in para12 of Carol Green’s affidavit simply “as an

article dated September 30, 2013 published by theNational Post.” The

article is the opinion of Matt Gurney commenting on the discipline of Jack Redlick for the assault on Mr.Petropoulos and on Derek Huff’s claims against Jack Redlick for the assault on Mr. Kozina. The

article reports that the Edmonton policechief says he’s determined to get to the bottom of Derek Huff’s official complaint to the deputy chief of police and the Alberta SeriousIncident Response Team. Chief Rod Knecht is quoted as telling CBC: “Obviously if the good cop goes and the bad cop stays, that’s not agood thing.” The author of the National Post

article then notes “in between the beating incidents that Huff and Petropoulos reported,Redlick shot and killed a man. The shooting was ruled justified, based on the testimony of other officers.… But if a police officermurdered a man, and then had it covered up by fellow officers, or even if that possibility seems plausible, the Edmonton Police will havean absolute crisis of credibility on their hands.… “

[ 114 ] Counsel for the defendant’s argues this exhibit is prima facie prejudicial bad character evidence. Counsel for the plaintiff argues the public interest is highlighted by this opinion

article titled “Edmonton’s police owe the public far better than this”. In para 44 of the plaintiff’s Written Submissions it is “submitted that the public interest as evidenced by this opinion piece is a relevant factor for the Court to consider in the context of the Applicant Defendants application for security for costs.” [ 115 ] The National Post opinion piece contains the author’s

summary of facts already in the material which has not been struck from Carol Green’s affidavit, with a conclusion about the public interest based on speculation of a possibility that may seem plausible. The National Post

article is improper opinion and adds nothing of probative value for the purpose of the Court’s exercise of discretion as to whether to require the plaintiff to post security for costs. Exhibit 7 and para 12 should be struck. Conclusion [ 116 ] This action is brought by Carol Green for the wrongful shooting and death of her son, Cyrus Green. Her claim is against the Constable who fired the shots, Jack Redlick, and the Chief of the Edmonton Police Service. Their defence is that the use of deadly force was justified. The litigation is at a preliminary stage.

There are three outstanding applications to be heard together: the plaintiff’s applications to amend statement of claim and compel records related to Constable Redlick’s mental health and the defendant’s application for security for costs. [ 117 ] Prior to those applications being scheduled for a special hearing, the defendants brought this written application pursuant to rule 3.68(4)(

c) to strike all or parts of the plaintiff’s affidavits as containing frivolous, irrelevant and improper information. [ 118 ] The plaintiff’s affidavits contain information about Constable Redlick’s mental health and about other incidents where use of the necessary force was alleged.

The defendants seek to strike those portions of the affidavits and exhibits as being prohibited character evidence and irrelevant to the issue of whether the shooting was justified or a wrongful act; the potential probative value of the information tendered as evidence by the plaintiff does not outweigh its prejudicial effect. [ 119 ] I have reviewed the law related to amending pleadings, disclosure of information, and security for costs. I have also considered the rules of evidence, prohibited character evidence, and the exception for similar fact evidence.

This review was for the purpose of considering the application to strike portions of the plaintiff’s affidavits in the context of the three outstanding applications. [ 120 ] I have reviewed the affidavits and exhibits in question and considered the arguments in the written submissions of Counsel for the plaintiff and Counsel for the defendants. [ 121 ] It is not for me to determine whether the statement of claim should be amended, whether disclosure of Constable Redlick’s mental health records should be ordered, or whether the plaintiff should post security for the defendants’ costs. [ 122 ] I have determined that the Disciplinary Decision, the CBC News Article, and the Alberta Law Enforcement Review Board decision exhibited to the plaintiff’s affidavits and the related paragraphs should not be struck and should be available to the judge hearing the three outstanding applications. [ 123 ] I have decided that the other exhibits to Carol Green’s affidavit and related paragraphs should be struck pursuant to rule 3.68(4) (

c) as being either irrelevant or improper information.

This includes the statement of claim at Exhibit 2 and the news articles at Exhibits 5, 6 and 7. [ 124 ] Although I have confidence that the judge hearing the outstanding substantive applications will not be swayed by the prejudicial effect of what the defendants argue is bad character evidence, I find these exhibits to be of no additional probative value and ought to be struck to safeguard fundamental evidentiary requirements of affidavit evidence. [ 125 ] Costs of this application may be spoken to at the hearing of the substantive applications. [ 126 ] I wish to thank counsel for their thorough written submissions and patience in awaiting this decision.

With Notice Application by Written Submissions made the 14 th day of June, 2021. Dated at the City of Edmonton, Alberta this 10 th day of January, 2023. L.R. Birkett A.J.C.K.B.A. Appearances:

Michele A. Wolowidnyk Weir Bowen LLP for the Applicants/Defendants Erika Norheim Erika Norheim Professional Corporation for the Respondent/Plaintiff _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Applications Judge L.R. Birkett _______________________________________________________ The date that the With Notice Application was made has been corrected to read: With Notice Application by Written Submissions made the 14th day of June, 2021.