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.