Case Considered: Dabrowski v. Robertson, 2007 ABQB 680

PDF Version: Fading to Brown: Limits on Evergreen Discovery in Alberta

This decision by Madam Justice Joanne Veit of the Alberta Court of Queen’s Bench clarifies that counsel and parties to litigation in Alberta do not currently have an obligation to provide “evergreen” oral discovery. Counsel may have an obligation to disclose “after-acquired information” if it is requested by opposing counsel, and may have an obligation to correct misleading evidence provided by a witness. However, neither of those obligations requires them or their clients to disclose that the witness’s evidence at trial will be different from that given at discovery because the witness’s memory of events has now improved. The case also clarifies that while the Law Society remains the “best authority on compliance by its members with its Code of Professional Conduct,” “a lawyer’s ethical responsibility exists at common law, independently of any Code of Conduct” (para. 22 and 26).