Executive Summary: Key Legal and Evidentiary Issues

• The appeal challenged a chambers judge’s order compelling answers to four undertakings refused during affidavit questioning.

• The undertakings sought corporate and accounting records related to a Corvette claimed to be owned by a company connected to the judgment debtor.

• The chambers judge found the undertakings relevant and proportionate in light of suspicious circumstances and potential indicia of possession.

• The appellants argued that the judge erred by not considering their rebuttal evidence and by mischaracterizing the issue before the court.

• The Court of Appeal held that the chambers judge correctly identified the issues and applied the proper legal principles.

• The appeal was dismissed, and the disclosure order was upheld.

Facts and procedural background

Terry Raymond is a judgment creditor of Ben Koorbatoff. To enforce his judgment, Raymond arranged for a civil enforcement agency to seize a Corvette vehicle he believed had been purchased by Koorbatoff. In response, Koorbatoff denied ownership, and 2171528 Alberta Ltd. ("217") brought an originating application seeking release of the seizure. 217 claimed ownership of the Corvette. The company’s sole director and shareholder is Moriah Klessens, the adult interdependent partner of Koorbatoff.

During questioning on an affidavit filed by Ms. Klessens in support of 217’s application, Raymond requested answers to four undertakings. These undertakings sought corporate and accounting records to clarify the source of funds used to purchase the Corvette and to assess whether Koorbatoff had any interest in the vehicle. Ms. Klessens refused the undertakings. The chambers judge later compelled answers to all four.

Chambers decision and appeal

The chambers judge found that the undertakings were relevant and not unduly burdensome. The judge noted that the evidence raised concerns about Koorbatoff’s role in the vehicle’s purchase and suggested he may have been in actual or apparent possession of the Corvette. This could trigger a presumption of an exigible interest. The judge concluded that the undertakings were necessary to test the credibility of the affidavit evidence and assist the court in determining key issues in the seizure dispute.

On appeal, the appellants argued that the chambers judge misunderstood the scope of the issue, which they framed as whether Raymond was improperly seeking to enforce his judgment against 217, not Koorbatoff. They also submitted that the judge failed to consider their rebuttal evidence against the presumption of ownership and misapplied the relevance and proportionality analysis.

Court of Appeal ruling

The Alberta Court of Appeal unanimously dismissed the appeal. Justice Grosse, writing for the Court, held that the chambers judge did not decide the ultimate issue of ownership or seizure validity but properly exercised discretion on whether the undertakings should be answered. The Court confirmed that decisions on undertakings during affidavit questioning attract a deferential standard of review and are only overturned for legal error, misapprehension of facts, or unreasonableness.

The Court agreed that the judge correctly identified the legal issues, found the undertakings relevant to those issues, and appropriately balanced proportionality. The appellants did not demonstrate any error of principle or unreasonable conclusion that would warrant appellate intervention.

Conclusion

The appeal was dismissed. The chambers judge’s decision to compel answers to the undertakings stands. The ruling reinforces the discretion afforded to chambers judges in managing pretrial disclosure and the limited scope for appellate interference absent a clear error.