Upload of Law Society report raises confidentiality issue: Alberta Court of Appeal

Appeal contested order to produce legal regulator’s privileged records unredacted in defamation case

Upload of Law Society report raises confidentiality issue: Alberta Court of Appeal

The Alberta Court of Appeal has directed the submission of an investigative report subject to a sealing order application as a separate volume in the court’s electronic filing system (CAMS), marked confidential, to preserve the continuity of the process established by the case management judge.

In Terrigno v. Butzner, 2022 ABCA 275, Mike Terrigno sued Decker Butzner for defamation from an incident at a City of Calgary Planning Commission meeting. Butzner maintained that Terrigno threatened him. The incident was reported to the Law Society of Alberta and an investigation was conducted.

In the litigation proceedings, Butzner sought the production of records from third parties, specifically the Society’s investigative file in its complete, unredacted form. The Society did not object, but sought a confidentiality order. Terrigno agreed, but he argued that irrelevant and privileged records should not be given to Butzner.

The case management judge directed that certain parts of the record be produced unredacted. Terrigno appealed. The case management judge stayed his decision pending the determination of the appeal.

On appeal, Terrigno applied for a sealing order. As a practical issue, Terrigno argued that while the panel should have access to the records at issue, uploading them to the court electronic filing system (CAMS) would defeat the purpose of the appeal.

The appellate court agreed.

The case management judge had issued an order directing the Society to submit for review any documents upon which the issue of solicitor-client privilege may be ruled. The judge later issued an endorsement regarding the investigative report in issue, which was the subject of the appeal.

To preserve the continuity of the process placed by the case management judge, the appellate court directed the filing of the records as a separate volume of Extracts of Key Evidence of the Appellant in CAMS, marked confidential. The materials were to be provided to the panel only and Butzner would not have access to those specific records unless otherwise ordered, said the court.

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