In McAllister v Calgary (City), 2012 ABCA 346 (“McAllister”), the Alberta Court of Appeal considered the meaning of “control” under the Alberta Rules of Court, AR 124/2010, Rule 5.6 (the “Rules”), dealing with Form and Contents of Affidavit Records.
In summary, the Court of Appeal concluded that records in the possession of a municipality’s police service are not under the “control” of the municipality for purposes of document disclosure under Rule 5.6, overturning the previous position inHunter v Eck, 1976 CanLII 270 (AB QB), in which it was held that police records were in the possession and under the power of the municipality that established the police service. The test for “control” remains unchanged: for a party to have “control” over a record held by a non-party, a party must have a legal right to access the record or get copies of the record from a non-party.
Kyle McAllister (“McAllister”) was assaulted on city property and sued the City of Calgary (the “City”) for breach of statutory duty, negligence and bad faith for damages allegedly arising from the City’s failure to implement adequate security measures at C-train stations. McAllister sought from the City disclosure of records that were in the possession of the Calgary Police Service (the “Police”), who were not a party to the action. The City refused disclosure of the records on the basis that they were not the City’s records.
This issue in this case focussed on whether or not police records were under the “control” of the City, such that disclosure was required pursuant to Rule 5.6.
I. Meaning of “Control” in the Alberta Rules of Court
The Court of Appeal addressed the meaning of “control” as found in Rule 5.6(1), which states:
An affidavit of records must…(b) disclose all records that
- are relevant and material to the issues in the action, and
- are or have been under the party’s control.[Emphasis added.]
Madam Justice Paperny, writing for the court in McAllister, noted that the previous Alberta Rules of Court dealing with disclosure of records in Rule 187.1 required disclosure of records in a party’s “possession, custody or power” [at para 6]. The courts, in applying the old Alberta Rules of Court, had taken the position that for a party to have power over a record held by a non-party, a party must have a legal right to access the record or get copies of the record from a non-party (Brown v Nguyen, 2006 ABQB 783). The right to access records could arise out of contract, statute, at common law or at equity.
In reflection of this position, Madam Justice Paperny stated:
In my view, this remains the test for disclosure in Alberta. The simplification of the language to “control” in the current Rules of Court does not alter the test. There is no substantive difference in meaning between the two phrases. I would add that the right to access the record must be specific to the party from whom disclosure is sought; merely having the ability to bring an application for third party disclosure under the Rules of Court, an application equally available to any party to the litigation, is not sufficient to indicate control.[At para 7, emphasis added.]
The Court of Appeal went on to explicitly note that disclosure is not required as a result of an existing relationship between the party and non-party. If the party requesting disclosure from the non-party does not have a corresponding ability to enforce compliance with the request, regardless of the relationship between the party and non-party, the party does not have “control” over the record.
II. Application to the Facts in McAllister
The specific factual question in McAllister surrounded whether or not the City had “control” over the records of the Police for the purposes of disclosure. This hinged on whether the City had a right to access the records in question. The Court of Appeal identified that the responsibilities of municipal councils and the police commissions are clearly distinct as set out in the Police Act, RSA 2000 c P-17, and the responsibilities do not overlap. The court noted that the intention of the legislature in drafting the Police Act was to create distance between municipal councils and the police services which they establish. There is no basis of “control” by the City over the records of the Police pursuant to Rule 5.6, and thus the City had no legal right to access the records of the Police.
The Alberta Court of Appeal made it clear that disclosure is required where a party to litigation demonstrates “control” over a record held by a non-party pursuant to Rule 5.6(1). It should be noted that the meaning of “control” in Rule 5.6(1) can arguably be extended to its use in 5.30(1), which deals with the production of records on undertakings.
As the Court of Appeal in McAllister confirmed, “control” is the legal right of a party to access the record or obtain copies of such from a non-party. The Court of Queen’s Bench in Brown v Malik, 2007 ABQB 270, in addressing the meaning of “control” under the old Rules, found that the ability to simply request a record was not enough to satisfy “control”. This position likely holds true under the new Rules, as the Court of Appeal in McAllister endorsed the same test under the new Rules as was applied under the old Rules.
Madam Justice Paperny in McAllister also provided a reminder that records in the possession and “control” of a non-party to litigation are still accessible, as any party to litigation may apply to obtain records from a non-party by way of an application pursuant to Rule 5.13.
In summary, practitioners should be reminded by the legal analysis in this case that disclosure is not automatic, and that “control” may need to be demonstrated.