New Rules of Court Interpreted: Rule 5.33, Disclosure of Information

Case considered: Italian Centre Shop South Ltd. v. Moreira, 2011 ABQB 41

The Plaintiff, Italian Centre Shop South Ltd., sued the Defendant, Marcia Moreina, for allegedly stealing $173, 597.39 over the course of her employment with the Plaintiff. The Defendant was also charged criminally for defrauding the Italian Centre Shop South Ltd. of more than $5000. The Plaintiff applied for summary judgment and the Defendant applied for a stay of civil proceedings pending the resolution of criminal proceedings arising from the same facts.

Justice J.M. Ross noted that the Alberta authority for the test for stay of civil proceedings due to concurrent criminal proceedings is set out in Saccomanno v. Swanson (1987), 34 D.L.R. (4th) 462. In Saccomanno, Berger J. (as he then was) held that “an accused is not entitled to a stay of proceedings in a concurrent civil proceeding arising from the same facts, but that the Court has discretion to grant a stay in exceptional circumstances” (Italian Centre at para. 11). Justice Ross cited Rule 5.33 of the new Alberta Rules of Court, which states that information or records provided through Part 5: Disclosure of Information “must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action in which the information or record was provided or disclosed”. Justice Ross also reiterated that, as indicated by Berger J. in Saccomanno, an application can also be brought to seek additional directions, including (but not limited to) directions prohibiting any person present from disclosing the questions or answers or excusing the defendant-accused from answering particular questions until the concurrent criminal proceeding is concluded.

Justice Ross concluded however that such alternative measures are not available with respect to evidence provided in response to a summary judgment application. Consequently, there were exceptional circumstances in this case which justified a stay of the Plaintiff’s summary judgment application until the resolution of the criminal proceeding against the Defendant. But, these circumstances did not require a stay of the civil action as a whole and the Plaintiff was entitled to proceed with other respects, in particular under Part 5: Disclosure of Information, subject to potential applications for directions to ensure that the Defendant would not be prejudiced in the criminal trial by her disclosure of information under Part 5.

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