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CIVIL EVIDENCE - Privileged documents

Thursday, August 22, 2019 @ 8:34 AM  

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Appeal by Kaufmann from a decision of a chambers judge prohibiting the appellant from disclosing a settlement letter, granting the respondent City a sealing order and remitting the City’s decision to issue a ban for redetermination and ordering the appellant to pay $7,000 in costs.  The appellant sought judicial review of the City’s decision banning him from using the City’s recreation centres, outdoor pools and arenas for a period of two years. The chambers judge found the two-year ban was not reasonable on the record provided, vacated the ban immediately and remitted the matter back to the City to determine the penalty. The City then imposed a new ban that expired in April 2018. This decision was not appealed. Prior to the judicial review hearing, the City and the appellant engaged in settlement discussions. The City provided the appellant with a draft letter that formed part of a settlement offer. The appellant rejected the settlement offer. The appellant disclosed the letter to third parties. The appellant also filed a copy of the letter with the lower court. The chambers judge agreed with the City and declared that the appellant breached the privilege. The appellant was ordered not to disclose the letter to any person without leave of the court or consent of the City. The chambers judge also sealed the affidavits that exhibited the letter.

HELD: Appeal dismissed. The chambers judge correctly stated the law and made no reviewable error in finding that there was no evidence of fraud or misrepresentation on the facts of this case and in finding that the settlement letter was privileged. The chambers judge appropriately exercised his discretion to make the sealing order. The appeal from the order vacating the ban was moot. The cost order followed the ordinary rule that the successful party was entitled to costs, and where success was mixed, each party may bear its own costs. There was no reviewable error made by the chambers judge and no basis to interfere.

Kaufmann v. Edmonton (City), [2019] A.J. No. 901, Alberta Court of Appeal, M.B. Bielby, T.W. Wakeling and E.A. Hughes JJ.A., July 9, 2019. Digest No. TLD-August19019008