Executive Summary: Key Legal and Evidentiary Issues

• Rule 5.33 of the Alberta Rules of Court supersedes the broader common law implied undertaking of confidentiality within Alberta proceedings.

• The Peterson Transcript, originating from U.S. litigation, falls outside the scope of Rule 5.33 and is not protected by the implied undertaking in Alberta.

• Alberta courts lack jurisdiction to enforce or interpret confidentiality obligations arising from American court proceedings.

• The defendant failed to prove that the Peterson Transcript was properly designated as confidential under the U.S. protective order.

• The Court declined to grant broad permission for future use of the Peterson Transcript under Rule 6.11(1)(f), citing ongoing relevance and materiality considerations.

• The Court ruled in favor of the plaintiff, permitting use of the Peterson Transcript for this application and awarding costs to Allridge.

Background and litigation context
In Allridge v Thomson International Inc., 2025 ABKB 97, the Court of King's Bench of Alberta considered an application by the representative plaintiff, Sydonni Allridge, seeking to use a transcript from a U.S. proceeding—the “Peterson Transcript”—in this Alberta class action. The transcript in question came from questioning of a corporate representative in the U.S.-based Peterson action, which involved related subject matter.

Thomson International Inc., the defendant, opposed its use, arguing that it violated the implied undertaking of confidentiality. They contended that the Peterson Transcript was protected under the common law or under Alberta’s codified Rule 5.33. Allridge responded that Rule 5.33 does not apply to documents created outside Alberta’s jurisdiction and that the common law undertaking no longer operates independently in Alberta.

Policy terms and legal framework at issue
The legal discussion centered around Rule 5.33 of the Alberta Rules of Court, which codifies the implied undertaking of confidentiality. This rule limits the use of certain information disclosed during litigation (including questioning transcripts) to the proceeding in which it was disclosed. It does permit broader use if the Court allows under Rule 5.33(1)(a).

Justice M.E. Burns reviewed the rule's language and history, referencing legal texts and precedent including Makis v Alberta Health Services, 2020 ABCA 168, and Juman v Doucette, 2008 SCC 8. The decision explains that while Rule 5.33 covers transcripts from Alberta questioning procedures, it does not extend to documents created under foreign (i.e., U.S.) discovery rules. The Court emphasized that Rule 5.33 applies only to materials “derived pursuant to the discovery procedures in Division 1 of Part 5 of the Rules of Court” and excludes documents like pleadings or foreign transcripts.

Analysis of the Court’s reasoning
The Court concluded that the Peterson Transcript was not subject to Alberta’s implied undertaking of confidentiality because it was generated during litigation in the United States, outside the scope of Alberta’s discovery procedures. Therefore, Rule 5.33 does not apply to it.

Justice Burns also found that Alberta courts cannot enforce confidentiality obligations imposed in foreign jurisdictions, as they are “a stranger to that promise.” The U.S. litigation falls under a different jurisdiction and the Canadian court has neither authority nor ability to interpret or enforce protective orders issued by a U.S. court.

Although Thomson International referred to a U.S. protective order that might render the transcript confidential, they failed to demonstrate that the transcript was actually designated as confidential under that order. An affidavit from Ms. Lien Amin, an American solicitor, cast doubt on whether proper designation steps had been taken. Without such proof, the Court concluded that there was no legal barrier to the transcript’s use in the Alberta case.

Court's conclusions and outcomes
Justice Burns answered the three issues raised in the application as follows:

1. Does the implied undertaking of confidentiality apply to the Peterson Transcript? No.

2. Should the Court grant relief under Rule 5.33(1)(a) to permit use of the Peterson Transcript? Not necessary.

3. Should the Court grant permission to rely on the Peterson Transcript under Rule 6.11(1)(f)? No.

The Court allowed the use of the Peterson Transcript for the current application but declined to authorize its use in all future proceedings. It held that issues of relevance and materiality would need to be assessed as they arise. The Court awarded costs of the application to Allridge, the successful party.

This decision was issued by Justice M.E. Burns on February 20, 2025, following a hearing on November 15, 2025, in Edmonton.