The Meaning Of 'Control' Under The Alberta Rules Of Court Dealing With Record Disclosure

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 in Hunter 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.

FACTS

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.

CASE ANALYSIS

1. 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 (i) are relevant and material to the issues in the action, and (ii) 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...