498140 Alberta Ltd. et al. v. Canadian Pacific Railway et al.,

• Judge: Laycock
• Neutral Citation: 2006 ABQB 433
• Citation: 2006 ABQB 433,(2006), 402 A.R. 366 (QBM),402 AR 366,(2006), 402 AR 366 (QBM),402 A.R. 366
• Date: 28 April 2006
• Court: Court of Queen's Bench of Alberta (Canada)

498140 Alta. Ltd. v. CPR (2006), 402 A.R. 366 (QBM)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JN.140

498140 Alberta Ltd., Nico Schiavone and Valerie Schiavone (plaintiffs) v. The Canadian Pacific Railway (defendant) and HSBC Bank Canada (third party)

(0008 00903; 2006 ABQB 433)

Indexed As: 498140 Alberta Ltd. et al. v. Canadian Pacific Railway et al.

Alberta Court of Queen's Bench

Judicial District of Medicine Hat

Laycock, Master

June 16, 2006.

Summary:

The Canadian Pacific Railway (CPR) refused to sign an indemnity agreement that the plaintiffs required to obtain financing for a pub to be located on environmentally-contaminated property adjacent to a railyard. The plaintiffs sued CPR for damages due to their inability to obtain financing. In its defence, CPR alleged, inter alia, that financing in the contaminated area was available to other businesses. CPR applied for an order requiring two nonparty lenders to produce records relating to lending decisions for businesses in the contaminated area.

A Master of the Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See Practice - Topic 4601 ].

Practice - Topic 4601

Discovery - Production of documents by nonparties - General (incl. procedure) - The Canadian Pacific Railway (CPR) refused to sign an indemnity agreement that the plaintiffs required to obtain financing for a pub to be located on environmentally-contaminated property adjacent to a railyard - The plaintiffs sued CPR for damages due to their inability to obtain financing - In its defence, CPR alleged, inter alia, that financing in the contaminated area was available to other businesses - CPR applied for an order requiring two nonparty lenders to produce records relating to lending decisions for businesses in the contaminated area - A Master of the Alberta Court of Queen's Bench dismissed the application - The request was not a fishing expedition nor was it barred by Alberta privacy legislation - The court had authority to order disclosure of banking records that were necessary to determine civil litigation issues - However, decisions by lenders were made for many reasons, including risk factors such as a customer's net worth, cash flow, value of security, receivables, ability, education and knowledge - The contamination issue was included in the value of the security - The reason why the lenders made their loans was not relevant to the lawsuit's issue.

Practice - Topic 4603

Discovery - Production of documents by nonparties - Jurisdiction - [See Practice - Topic 4601 ].

Cases Noticed:

Rhoades v. Occidental Life Insurance Co. of California, [1973] 3 W.W.R. 625 (B.C.C.A.), appld. [para. 10].

Yellowbird v. Lytviak et al. (1997), 210 A.R. 81 (Q.B.), refd to. [para. 13].

Métropolitaine compagnie d'assurance-vie v. Frenette, Hôpital Jean-Talon et un autre, [1991] 1 S.C.R. 647; 134 N.R. 169; 46 Q.A.C. 161, refd to. [para. 13].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1988), 94 A.R. 17; 63 Alta. L.R.(2d) 189 (Q.B.), refd to. [para. 15].

Alberta (Treasury Branches) v. Hammond, [1997] 2 W.W.R. 260; 192 A.R. 353; 45 Alta. L.R.(3d) 74 (Q.B.), refd to. [para. 19].

Alberta (Treasury Branches) v. Georgopoulos, [1998] A.R. Uned. 741; 1998 ABQB 984 (Master), refd to. [para. 20].

Allen v. Girard et al., [2002] B.C.W.L.D. 981; [2002] B.C.T.C. 1354; 5 B.C.L.R.(4th) 320; 2002 BCSC 1354, refd to. [para. 20].

Tournier v. National Provincial and Union Bank of England, [1924] 1 K.B. 461 (C.A.), refd to. [para. 23].

Counsel:

Bruce G. Thompson (Macleod Dixon LLP), for the applicant, CPR;

Glenda L. Pidde (ATB Financial Legal Services), for the respondent, Alberta Treasury Branches.

This application was heard on April 28, 2006, by Laycock, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Medicine Hat, who delivered the following reasons for judgment on June 16, 2006.