Alberta court bans litigant from using tape recording he deliberately kept undisclosed

The Alberta Court of Queen’s Bench ruled against a plaintiff who failed to disclose in his sworn affidavit that he had a tape recording of the incident under dispute in his possession.

The controversy in Terrigno v Fox, 2022 ABQB 199 stemmed from a defamation action between Mike Terrigno and the spouses, Brian and Uta Fox. Terrigno held a mortgage against a house owned by the Foxes. While Terrigno was conducting foreclosure proceedings against this property, he got into a heated conversation with Brian Fox at the Calgary courthouse. Terrigno recorded the conversation without the knowledge of Fox.

An aggrieved Fox complained to the police, Terrigno’s lawyers, and two Queen’s Bench Justices. He alleged that Terrigno had threatened him during the courthouse incident. The Foxes also published negative comments about Terrigno on their Facebook page.

Terrigno alleged that Fox’s allegations and the social media comments were defamatory. In his statement of claim, he listed Fox’s remarks to the police, Queen’s Bench Justices, and the Facebook posting. However, his affidavits of records did not disclose that he had the audio recording of the courthouse incident in his possession. The court said these were false affidavits.

Terrigno tried to explain his omission by saying that there was “an obvious and grave risk that Brian Fox, a notorious fraudster, who is obviously not telling the truth, would tailor his evidence to snake around the audio recording.” He later filed a supplemental affidavit that referred to the audio recording. The Foxes asked the court to ban Terrigno from using the recording.

The court found that Terrigno’s failure to provide an accurate affidavit of records was done deliberately for a collateral purpose, attempting to have Brian Fox perjure himself. The court ruled that Terrigno’s deliberate provision of a false affidavit of records contravened rule 1.5 of the Rules of Court. Consequently, he has been banned from using the recording.

In addition, Terrigno also attached Brian Fox’s entire discovery transcript to an affidavit that he had filed in court. He also released the transcript to the police to have them bring charges against Fox for perjury. The court said Terrigno’s conduct violated the implied undertaking of confidentiality under rule 5.33. Terrigno argued that the transcript had become a public document once filed in court. The court disagreed, declaring that jurisprudence clearly stated transcripts of discovery are confidential. The court ultimately ruled that Terrigno breached the duty of confidentiality and breached the prohibition against filing a discovery transcript.