Executive Summary: Key Legal and Evidentiary Issues

• Dispute centers on whether documents taken by the plaintiff shortly before her termination are privileged or confidential information of either defendant and whether she may still use them in this litigation.

• An earlier ruling (2026 ABKB 38) established a step-by-step process for resolving privilege and confidentiality claims, including a directed application to be filed by the defendants.

• Defendants questioned the soundness of the directed application process and proposed that the plaintiff's summary-judgment application should proceed first instead.

• The burden of proving solicitor-client privilege rests on the party asserting it, requiring clear, cogent evidence on a balance of probabilities.

• Alberta's proposed sequencing change contradicted its own earlier position that privilege and records issues should be resolved before any summary-judgment application.

• No party appealed the original case-management directions, and no material change of circumstances was demonstrated to justify altering the established sequence.

Background of the dispute

Athana Mentzelopoulos, the plaintiff, commenced proceedings in the Court of King's Bench of Alberta against Alberta Health Services (AHS) and His Majesty the King in Right of Alberta (represented by Adriana LaGrange in her capacity as Minister of Health). The case arose from Ms. Mentzelopoulos's employment with AHS and her subsequent termination. Shortly before her termination, Ms. Mentzelopoulos took certain documents and included them in her affidavit of records in this litigation. The defendants contend that some of these documents are protected by solicitor-client privilege or are otherwise confidential information in their favour, and that Ms. Mentzelopoulos should not be permitted to retain or rely on them.

The earlier procedural framework

In an earlier decision, Mentzelopoulos v Alberta Health Services, 2026 ABKB 38, Justice Michael J. Lema outlined the process for answering questions about the status of the contested documents. The Court accepted the steps proposed by Ms. Mentzelopoulos in paragraph 39 of her brief, which required the defendants to provide, on or before September 30, 2025, a list identifying any records from the plaintiff's affidavit of records over which a claim of solicitor-client privilege was asserted. The list was also to identify the name of the defendant asserting the privilege. Within four weeks of receiving the defendants' lists, the plaintiff would reply, providing her response as to whether the record was subject to the type of privilege claimed, whether that privilege had been waived, and any other reason why the record was producible by her. For any records that remained in dispute, the defendants claiming the privilege were to file an application at their earliest convenience to address the remaining claims of privilege over the identified records, and the Court would then determine any remaining issues. The Court also accepted the steps proposed in paragraph 17(c) of Alberta's brief, under which the defendants would file their amended applications seeking relief associated with Ms. Mentzelopoulos's retention of records. As the Court noted, this process was grafted onto existing return-documents applications by the defendants.

The recent case-management dispute

At a case-management meeting heard on February 17, 2026, the plaintiff sought confirmation of the earlier directions. The defendants, however, raised objections. They questioned the soundness of the bring-application direction, suggested the plaintiff was unjustifiably seeking to expand its scope, and proposed that the plaintiff's summary-judgment application should proceed before taking any further steps on the privilege-and-confidentiality front. Justice Lema found that the existing process governs, that it sufficiently defines which records are to be addressed in the directed application, and that the existing sequence of steps should be maintained.

The defendants' proposed change in sequencing

Alberta suggested, and AHS concurred, that, instead of the directed application, the next step should be the plaintiff's summary-judgment application. Alberta's detailed proposal included that the current interim injunction would remain in place with respect to the records retained by the plaintiff from AHS; that the defendants' applications relating to the retained documents would be adjourned to be resolved only if the matter was not disposed of by summary judgment; that none of the records over which privilege had been alleged would be used by the plaintiff; and that the defendants would not put any of the privileged documents to any of the witnesses Ms. Mentzelopoulos sought to question. Alberta also proposed that if the plaintiff sought to have one of the retained records over which privilege was not claimed put to a witness or otherwise put on the Court record, the defendants would be provided advance notice to consider whether a sealing order was required. Further, the defendants would not raise the fact that retained records over which privilege was asserted had been retained or reviewed by counsel as a basis to seek disqualification of counsel. A full-day summary judgment hearing would be set down with pre-hearing steps including Rule 6.8 questioning and cross-examinations completed eight weeks before the hearing, responding materials filed six weeks before, further cross-examinations completed four weeks before, primary briefs filed two weeks before, and response briefs filed one week before the hearing.

The Court's analysis of the sequencing request

Justice Lema observed that this proposed change in sequencing was the opposite of Alberta's position in its earlier brief. In that earlier brief, Alberta had argued that the first issue to be addressed was the question of what remedies might flow from Ms. Mentzelopoulos's intentional decision to retain records from her employment with AHS, stating that an adjudication of that pending issue was required first, as it would impact how the summary-judgment application could proceed — if it could proceed at all — since it informed what allegations of after-acquired cause were before the Court as well as what records might be before the Court due to privilege concerns. Alberta did not demonstrate that the circumstances were now materially different, on the sequencing-related issues, such that the sequencing should change. Alberta tried to emphasize the plaintiff's apparent characterization of her summary-judgment application as a "slam dunk" and what Alberta described as the application's narrow scope, namely the alleged lack of dismissal authority. However, as the Court noted, Alberta itself recognized the inevitability of a wider-scope summary-judgment application, including having to address after-acquired-cause issues, as further suggested by the plaintiff's statement that the application, already amended twice, was likely to be amended again. The Court also noted that no party appealed any of the directions made in the September 2, 2025 ruling and that Alberta itself had advised that it remained open to proceeding as originally envisioned.

Scope of the directed application

In her February 11, 2026 letter, the plaintiff had addressed other issues, such as whether documents described as privileged in Alberta's and AHS's affidavits of records were in fact privileged and whether certain documents not included in those affidavits should be added. The defendants objected to the perceived request to expand the scope of the directed application. However, the plaintiff's counsel acknowledged at the case-management meeting that the application as directed should proceed with the focus on the documents in the plaintiff's affidavit of records which either defendant perceives are privileged or confidential and which she sees as not privileged or confidential or as privilege- or confidentiality-waived or, in any case, as nonetheless useable by her in this litigation. Accordingly, the Court confirmed the focus would remain on those documents.

Ruling and outcome

Justice Lema declined to accept Alberta's suggested new approach to sequencing. The Court ordered that Alberta and AHS shall file the application directed on September 2, 2025, addressing the remaining issues outlined in paragraphs 39(d)-(g) of the plaintiff's brief. That application will be prepared, briefed, argued, and decided before any summary-judgment application is advanced. The Court also confirmed its willingness to address remedies for any wrongful retention of records found, along with the plaintiff's position on them, as part of the directed application. No specific monetary award was determined or granted in this endorsement, as the decision was procedural in nature, addressing case-management sequencing and process rather than the merits of the underlying claims. The parties were invited to contact the Court via joint letter if further directions on timing or otherwise were needed.