Back

Alberta Rules of Court - Rule 5.13

November 12, 2021

Alberta

,

Canada

Issue

What must be established to succeed on an application for the disclosure of records in possession of a non-party respondent?

Conclusion

Under subsection 5.1(2) of the Alberta Rules of Court, the Court may give directions or make any order necessary to achieve the purpose of discovery. Under subsection 5.13(1), the Court may order a person who is not a party to produce a record at a specified date, time and place, if certain conditions are met. (Alberta Rules of Court)

The Court's function on an r.5.13 application is to determine relevance, materiality and privilege. Rule 5.13 calls for a determination to be made by the court as to relevance and materiality, it is one of the pre-conditions to success under the rule. The test is whether the document relates to a matter in issue. To conclude that likelihood of relevance is required would render the rule meaningless. (Cullihall v Liyanage)

The Rules require the production of documents and the answering of questions if they are relevant and material. They are relevant and material if they:

(a) 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.

Relevance is primarily determined by the pleadings whereas materiality relates to whether the information can help, directly or indirectly, to prove a fact in issue. (Dow Chemical Canada ULC v Nova Chemicals Corporation)

The modern Rule 5.13 uses language that closely parallels that of its predecessor Alberta Rules of Court, Alta Reg 390/1968, s 209. Jurisprudence applying Rule 5.13 has referenced and used approaches developed in the application of that precursor provision. The requirement for potential disclosure is that “there is reason to believe” the information sought is “relevant and material”. (1985 Sawridge Trust v Alberta (Public Trustee))

In Toronto Dominion Bank v. Sawchuk, Master Schlosser held that r.5.13 requires notice, and lack of notice is said to be a complete technical answer to such an application, subject to caution about relying on purely technical matters under the new rules in general, as they provide for heed to be had to substance first.

Law

Under subsection 5.1(2) of the Alberta Rules of Court, Alta Reg 124/2010, the Court may give directions or make any order necessary to achieve the purpose of discovery. Under subsection 5.13(1), the Court may order a person who is not a party to produce a record at a specified date, time and place, if certain conditions are met:

Purpose of this Part

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.

(2) The Court may give directions or make any order necessary to achieve the purpose of this Part.

[...]

Obtaining records from others

5.13(1) On application, and after notice of the application is served on the person affected by it, the Court may order a person who is not a party to produce a record at a specified date, time and place if

(a) the record is under the control of that person,

(b) there is reason to believe that the record is relevant and material, and

(c) the person who has control of the record might be required to produce it at trial.

(2) The person requesting the record must pay the person producing the record an amount determined by the Court.

In Cullihall v Liyanage, 2016 ABQB 551 (CanLII), Master Mason held that the Court's function on an r.5.13 application is to determine relevance, materiality and privilege. Rule 5.13 calls for a determination to be made by the court as to relevance and materiality, it is one of the pre-conditions to success under the rule. The test is whether the document relates to a matter in issue. To conclude that likelihood of relevance is required would render the rule meaningless:

[9] For the reasons that follow, I conclude that it is the court’s function to determine relevance, materiality and privilege under rule 5.13. There is no blanket procedure as suggested by Mr. Cullihall. While there is no serious dispute about the existence of typical records on the Employers’ file, and the relevance and materiality of their typical contents, the breadth of some of the defendant’s requests and the lack of clarity in the plaintiff’s claimed entitlement to privilege require further submissions in order for the court to make the necessary determinations.

Rule 5.13

[10] Rule 5.13 provides a mechanism for litigants to obtain records from a non-party:

5.13(1) On application, and after notice of the application is served on the person affected by it, the Court may order a person who is not a party to produce a record at a specified date, time and place if

(a) The record is under the control of that person,

(b) There is reason to believe that the record is relevant and material, and

(c) The person who has control of the record might be required to produce it at trial.

(2) The person requesting the record must pay the person producing the record an amount determined by the Court.

[...]

[14] Rule 5.13 calls for a determination to be made by the court as to relevance and materiality. It is one of the pre-conditions to success under the rule. The manner in which that determination is arrived at must necessarily be determined in the context of the particular facts and pleadings in issue.

[15] Here, we are dealing with records contained in employment files maintained by the Employers. The court can reasonably presume that there would be certain types of records maintained on such files. It is not difficult to discern their typical contents.

[16] Mr. Cullihall did not suggest that the types of records sought did not exist or were not of the type typically maintained by an employer. He agreed that they likely contained relevant and material information. In the particular situation here, it may not be necessary to review the particular records for relevant and material contents. Rather, it may be appropriate to consider each type of record sought, and assess whether, as rule 5.13 contemplates, there is reason to believe that these contain information relevant and material to the matters in issue in the litigation.

[17] As with its predecessor rule 209, rule 5.13(1)(b) continues to recognize that relevance and materiality need not be guaranteed in order for records to be directed to be produced by non-parties: see for example, Yellowbird v Lytviak (1997), 1997 CanLII 14890 (AB QB), 210 AR 81 (QB) at 84-85, citing Frenette v Metropolitan Life Insurance Co., [1992] 1 SCR 64.

[18] In Yellowbird, Ritter J stated:

In my view, the test is not one of likely relevance but rather…it is one of whether or not the party requesting has reason to believe that the document relates to the matter in issue. Such reason to believe must be beyond something that raises a scintilla of a reason, but likelihood of relevancy can only be established if the party has actually seen the document. To conclude that likelihood of relevance is required would be to render rule 209 meaningless.

I draw support for this conclusion from the decision of the Supreme Court of Canada in [Frenette v Metropolitan Life Insurance Co.]…wherein…L’Heureux-Dube J...states:

It follows from this that an applicant need not show that a document is admissible in evidence at the trial as the condition of his obtaining an order under this rule. If a party seeking the order is able to satisfy the judge that the document, or information in the document, may relate to a matter in issue, the judge should make the order unless there are compelling reasons why he should not make it, e.g., the document is privileged. (emphasis L’Heureux-Dube J’s)

[19] Against this backdrop of general principles relating to rule 5.13 applications, I turn now to Mr. Cullihall’s specific submission that the proper procedure under rule 5.13 is to have the non-party records go first to the plaintiff for assessment of relevance, materiality and privilege.

In Dow Chemical Canada ULC v Nova Chemicals Corporation, 2014 ABCA 244 (CanLII), the Court held that the Rules require the production of documents and the answering of questions if they are relevant and material. They are relevant and material if they (a) 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. Relevance is primarily determined by the pleadings whereas materiality relates to whether the information can help, directly or indirectly, to prove a fact in issue:

[16] The trial judge did not commit any reviewable error with respect to this ground of appeal. The essential question is whether the disputed documents are relevant and material, and that test is the same under R. 5.5 and R. 5.13.

Relevance and Materiality

[17] The rules require the production of documents, and the answering of questions, if they are 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.

As the wording of the rule implies, relevance is primarily determined by the pleadings, whereas materiality relates to whether the information can help, directly or indirectly, to prove a fact in issue: Briggs Bros. Student Transportation Ltd. v Collacutt, 2009 ABCA 17 at para. 10, 100 Alta LR (4th) 17, 446 AR 191; Weatherill (Estate) v Weatherill, 2003 ABQB 69 at paras. 16-7, 11 Alta LR (4th) 183, 337 AR 180; Canadian Natural Resources Limited v ShawCor Ltd., 2013 ABQB 230 at para. 18, 90 Alta LR (5th) 169, 559 AR 66.

In 1985 Sawridge Trust v Alberta (Public Trustee), 2015 ABQB 799 (CanLII), Thomas J. held that the modern Rule 5.13 uses language that closely parallels that of its predecessor Alberta Rules of Court, Alta Reg 390/1968, s 209. Jurisprudence applying Rule 5.13 has referenced and used approaches developed in the application of that precursor provision. The requirement for potential disclosure is that “there is reason to believe” the information sought is “relevant and material”:

A. Rule 5.13

[27] I agree with the SFN that it is a third party to this litigation and is not therefore subject to the same disclosure procedures as the Sawridge Trustees who are a party. Alberta courts do not use proximal relationships as a bridge for disclosure obligations: Trimay Wear Plate Ltd. v Way, at para 17.

[28] If I were to compel document production by the Sawridge Band, it would be via Rule 5.13:

5.13(1) On application, and after notice of the application is served on the person affected by it, the Court may order a person who is not a party to produce a record at a specified date, time and place if

(a) the record is under the control of that person,

(b) there is reason to believe that the record is relevant and material, and

(c) the person who has control of the record might be required to produce it at trial.

(2) The person requesting the record must pay the person producing the record an amount determined by the Court.

[29] The modern Rule 5.13 uses language that closely parallels that of its predecessor Alberta Rules of Court, Alta Reg 390/1968, s 209. Jurisprudence applying Rule 5.13 has referenced and used approaches developed in the application of that precursor provision: Toronto Dominion Bank v Sawchuk, 2011 ABQB 757, 530 AR 172; H.Z. v Unger, 2013 ABQB 639, 573 AR 391. I agree with this approach and conclude that the principles in the pre-Rule 5.13 jurisprudence identified by the SFN apply here: Ed Miller Sales & Rentals Ltd v Caterpillar Tractor Co; Gainers Inc. v Pocklington Holdings Inc.; Esso Resources Canada Ltd. v Stearns Catalytic Ltd.

[30] The requirement for potential disclosure is that “there is reason to believe” the information sought is “relevant and material”. The SFN has argued relevance and materiality may be divided into “primary, secondary, and tertiary” relevance, however the Alberta Court of Appeal has rejected these categories as vague and not useful: Royal Bank of Canada v Kaddoura, 2015 ABCA 154 at para 15, 15 Alta LR (6th) 37.

[31] I conclude that the only documents which are potentially disclosable in the Public Trustee’s application are those that are “relevant and material” to the issue before the court.

In Toronto Dominion Bank v. Sawchuk, 2011 ABQB 757 (CanLII), Master Schlosser held that r.5.13 requires notice, and lack of notice is said to be a complete technical answer to such an application:

[23] Rule 5.13 typically requires notice of an application to compel production of a record to the outsider to the lawsuit. Although there is a common law right of discovery (ATB v. Leahy, 2000 ABQB 575 (CanLII), 2000 270 AR 1), Rule 5.13 and its predecessor, Rule 209, is the usual method of obtaining records in these circumstances.

[24] Rule 5.13 requires notice. Lack of notice is said to be a complete technical answer to such an application. (Berube v. Wringrowich, 2005 ABQB 367 (CanLII), 2005 382 AR 189, per Viet, J. (and the cases cited there). However, if there is one thing the new Rules tell us, it is to be cautious about the purely technical response. Instead we are to look to the substance of the matter.

[25] In this case, however, the first mortgagee is not a true outsider to the foreclosure proceedings and, as noted above, it is only a matter of practice (although well established practice) that prior encumbrancers are not joined as parties. I understand that the first mortgagee has no objection to production of this record other than seeking the protection of a Court Order to allay PIPEDA concerns.

[26] All of the requirements for a “Norwich style” common law discovery are present and all of the usual requirements of Rule 5.13 or its predecessor Rule 209, except an application on notice, are satisfied. A payment statement is an utterly routine request that I understand would not attract any cost or inconvenience on the part of the first mortgagee.

Alexsei publishing date:
67