Subpoena, Search Warrant and Production Order

Kwok v Canada (NSERC) 2013 ABQB 395

Dr. Daniel Kwok is an associate professor at the University of Calgary.

Between 2001 and 2005, the University of Alberta employed Dr. Kwok as an assistant professor. Since 2001, Dr. Kwok has received research grants from NSERC.

In 2004, Dr. Kwok’s Department Chair filed a complaint that Dr. Kwok had violated the University of Alberta’s Research and Scholarship Integrity Policy (the “Policy”) by improperly duplicating his publications in multiple journals. The University of Alberta investigated these allegations and, in 2005, concluded that Dr. Kwok had violated the Policy.

In 2005, Dr. Kwok resigned from his position at the University of Alberta and started a new position at the University of Calgary. He continued to receive grant money from NSERC.

After starting his new position, Dr. Kwok requested that the University of Alberta transfer some of his research equipment to the University of Calgary. This prompted the University of Alberta to investigate some of the purchases that Dr. Kwok had made using NSERC grant money.

In 2006, the University of Alberta Campus Security Unit determined that Dr. Kwok had misappropriated some of this grant money. To resolve matters, Dr. Kwok and the University of Alberta reached a settlement, whereby Dr. Kwok agreed to pay funds to the University of Alberta. Afterwards, in late 2008, the University of Alberta provided its investigation reports confirming the duplication of publications and misappropriation of grant money complaints to NSERC.

In 2009, NSERC terminated the grants it had awarded Dr. Kwok, and banned him from receiving further NSERC funding.

Ms. Munro, an investigative journalist for Canwest, requested records from NSERC concerning cases of researcher misconduct pursuant to the Access to Information Act, RSC 1985, c A-1 (“ATIA”). In 2008 and 2009, NSERC provided documents relating to Dr. Kwok’s termination to Ms. Munro. Ms. Munro then corresponded with NSERC and gleaned additional information. In 2010, Canwest and the National Post published articles written by Ms. Munro and Ms. Komarnicki that accused Dr. Kwok of plagiarism and misusing grant funds.

Decision Summary

Dr. Kwok is suing eight Defendants, including representatives of the National Sciences and Engineering Council of Canada, and two journalists employed by Canwest, alleging defamation and breach of contract.

On June 17, 2010, Dr. Kwok filed a Statement of Claim. On January 11, 2011, Dr. Kwok filed an Amended Statement of Claim.

Between January and November 2011, the parties participated in questioning. The Defendants produced over a thousand documents. Ms. St. Denis, Ms. Conway, and Ms. Munro were questioned.

On February 23, 2012, Dr. Kwok filed a Second Amended Statement of Claim. On March 14, 2012, Dr. Kwok requested the Defendants’ consent to his filing a proposed Third Amended Statement of Claim. All of the Defendants, except for one who did not respond, refused.

In this proceeding, the plaintiff/applicant was seeking an order granting him leave to amend the Second Amended Statement of Claim, and directing the Defendants to answer certain questions, respond to some undertakings, and produce further records.

One of the issues to be determined was:

Should Ms. Munro be directed to provide answers to the questions posed to her during her questioning between October 31 and November 2, 2011?

After a thorough analysis of the Wigmore criteria, and citing National Post (SCC) and 1654775 Ontario Limited v. Stewart (ONCA), Justice Mahoney states at para 167:

I find that the questions to Ms. Munro at exhibit 39 and exhibit 40 mentioned in the previous paragraph do not have to be answered because they are protected by the journalistic source privilege discussed already. Neither do they demonstrate a public interest that would warrant overriding the privilege.