Arcelormittal Tubular Products Roman S.A. et al. v. Canadian Natural Resources Ltd., 2013 ABQB 578

• Judge: Hughes, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 08, 2013
• Citations: 2013 ABQB 578;(2013), 571 A.R. 284 (QB)

Arcelormittal Tubular v. Cdn. Natural Resources (2013), 571 A.R. 284 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. NO.061

Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A. and as Ispat Petrotub S.A. and sometimes known as Ispat Petrotubas S.A. Romania, and Arcelormittal Galati S.A., formerly known as Mittal Steel Galati S.A. and as Ispat Sidex S.A. and sometimes known as Ispat Sidex S.A. Romani, and Arcelormittal Pipes & Tubes Galati S.R.L. (plaintiffs)

(applicants/respondents) and Canadian Natural Resources Limited (defendant)

(0701 12323; 2013 ABQB 578)

Indexed As: Arcelormittal Tubular Products Roman S.A. et al. v. Canadian Natural Resources Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

October 8, 2013.

Summary:

The Mittal companies supplied pipe to Canadian Natural Resources Ltd. (CNRL) for use in its oil sands production facility, the Horizon Project. CNRL alleged that some of the pipe was defective and had to be removed and replaced. Litigation ensued, including an action by the Mittal companies against CNRL for damages for defamation. Mittal applied to amend its statement of claim extensively. CNRL applied to strike part of Mittal's statement of claim wherein it was alleged that a Quality Alert Document published by CNRL was defamatory or and/or an injurious falsehood.

The Alberta Court of Queen's Bench determined which amendments would be allowed. The court granted CNRL's application to strike the pleadings in the statement of claim relating to the Quality Alert.

Libel and Slander - Topic 2041

Publication - Republication - General - The Alberta Court of Queen's Bench stated that "Republication has a special meaning in the law of defamation. It occurs where the person to whom the words were originally published communicates them to someone else ... As a general rule, defendants are not liable for the republication of defamatory statements by independent third parties unless one of three exceptions applies: (1) where the defendant authorized or intended the person to whom he published the words to repeat or republish them to some third person; (2) where the repetition or republication of the words to a third person was the natural and probable result of the original publication; and (3) where the person to whom the original publication was made was under a moral duty to repeat or republish the words to a third person ..." - See paragraph 76.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The Alberta Court of Queen's Bench stated that "Specificity in pleadings is particularly important in defamation actions ... Defamation pleadings must contain the details of the publication including the words published by the defendant, the time, place and manner of publication, and to whom the publication was made, so as to provide the defendant with adequate notice of the specific occurrence constituting the wrong ... to plead publication effectively, a statement of claim must allege publication of the defamatory expression to at least one named or identifiable person other than the plaintiff ... If the specific person who published the statement on behalf of the defendant is not identifiable, the plaintiff must plead that the identity is within the knowledge of, and can be discovered by, the defendant ..." - See paragraphs 25 and 26.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The Alberta Court of Queen's Bench stated that "... every delivery of a defamatory statement amounts to a new publication, giving rise to a separate cause of action even if the defendant is repeating or referring to something previously said ... As such, each defamatory statement, whether or not it is a repetition or republication, is subject to its own limitation period" - See paragraph 18.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The Alberta Court of Queen's Bench stated that, as a general rule, defendants are not liable for republication of defamatory statements by independent third parties unless one of three exceptions applied - Where a plaintiff sought to make a defendant liable for republication of the defamatory statements by others, the statement of claim had to specifically plead the exception(s) to the general rule upon which the plaintiff was relying - When a plaintiff sought to amend pleadings to include claims for republication of the defamatory statements, the amendments would only be allowed if they related back to the original publication - See paragraphs 76 to 78.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The plaintiffs sued the defendant for damages for defamation and injurious falsehood, arising from a Quality Alert Document issued by the defendant respecting the plaintiff's product - The defendant applied to strike the allegations relating to the Quality Alert - The Alberta Court of Queen's Bench granted the defendant's application to strike - The court determined that the Quality Alert was not defamatory and thus it was plain and obvious that the plaintiffs' defamation claim was bound to fail - Further, the plaintiffs were unable to establish the claim of injurious falsehood because they could not prove that the statement was false - It was therefore also plain and obvious that the claim of injurious falsehood was bound to fail - See paragraphs 102 to 116.

Libel and Slander - Topic 6129

Practice - Pleadings - Statement of claim - Amendment of - Section 6 of the Limitations Act permitted the addition of claims after the expiry of the limitation period where the added claim related to the conduct, transaction or events described in the original pleading - The Alberta Court of Queen's Bench reviewed the jurisprudence respecting whether a claim related to the "conduct, transaction or events described in the original pleading" in the defamation context - See paragraphs 42 to 67.

Libel and Slander - Topic 6129

Practice - Pleadings - Statement of claim - Amendment of - The plaintiffs sued the defendant for damages for defamation, arising from a Quality Alert Document respecting the defendant's product - The plaintiffs sought to amend their statement of claim respecting republication (i.e., there was an ongoing proliferation and republication of the Quality Alert via email) - The Alberta Court of Queen's Bench held that plaintiffs did not not adequately plead republication in their original Statement of Claim and could not relate the republication amendments back to their original pleadings - The republication amendments were not allowed - See paragraphs 74 to 95.

Libel and Slander - Topic 6129

Practice - Pleadings - Statement of claim - Amendment of - [See third Libel and Slander - Topic 6128 , first Practice - Topic 2111 and second and third Practice - Topic 2143 ].

Limitation of Actions - Topic 3241

Actions in tort - Libel and slander - General - [See second Libel and Slander - Topic 6128 and first Practice - Topic 2111 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - The Alberta Court of Queen's Bench stated that "An added or new claim is one that is based on different and distinct events giving rise to a different and distinct loss, when compared to the allegations made and loss claimed in the original pleadings ... In general, amendments do not add a new claim if they relate to the original series of events set out in the original pleading ... Determining whether a proposed amendment further particularizes the original pleadings requires a careful consideration of the original pleadings. If the original pleadings do not provide enough detail to create valid claims, then the amendments effectively bring new claims ..." - See paragraph 23.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The plaintiffs sued the defendant for damages for defamation, arising from a Quality Alert Document issued by the defendant on November 29, 2005, respecting the plaintiff's product - In 2013, the plaintiffs applied to amend their statement of claim respecting a January 13, 2006, email containing further allegedly defamatory words and forwarding the Quality Alert - The Alberta Court of Queen's Bench denied the amendment - The email presumptively raised a new claim - The amendment was out of time because the plaintiffs were aware of the claim on April 2, 2007 (Limitations Act, s. 3) - Further, the claims were not allowed to proceed notwithstanding the expiry of the limitation period under s. 6 of the Limitations Act because the email was a new publication and not related to the conduct, transaction or events pleaded in the original statement of claim - See paragraphs 27 to 67.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The Alberta Court of Queen's Bench noted that s. 6 of the Limitations Act permitted the addition of claims after the expiry of the limitation period where the added claim related to the conduct, transaction or events described in the original pleading - The court referred to appellate authority which established that "... the assessment of whether a new pleading arises from the same 'conduct, transaction or events' as the original pleading must be based on an assessment of the entire factual and legal context ... too general an interpretation of the relational requirement to the original pleadings would give the plaintiff an unlimited ability to add statute-barred claims ..." - See paragraph 35.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The Alberta Court of Queen's Bench noted that s. 6 of the Limitations Act permitted the addition of claims after the expiry of the limitation period where the added claim related to the conduct, transaction or events described in the original pleading - The court referred to appellate authority which established that "... the reason for the exception in section 6 of the Act is to permit new claims where the defendant will not be prejudiced or surprised, since the claims arise out of the same conduct, transaction or events. The test to determine whether a new claim is involved is 'to examine the extent to which a new set of conduct, transactions and events would have to be proven at the trial' ... In essence, would the documents and other evidence needed to prove the plaintiff's new allegations differ significantly from those required to prove the originally pleaded facts?" - See paragraph 37.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The Alberta Court of Queen's Bench noted that s. 6 of the Limitations Act permitted the addition of claims after the expiry of the limitation period where the added claim related to the conduct, transaction or events described in the original pleading - The court referred to a summary of the principles applicable to a section 6 analysis - See paragraph 38.

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - The plaintiff sued the defendant for damages for defamation and injurious falsehood, arising from a Quality Alert Document issued by the defendant on November 29, 2005, respecting the plaintiff's product - The plaintiffs applied to amend their statement of claim - Paragraph 58 detailed an email dated January 13, 2006, containing further allegedly defamatory words and forwarding the Quality Alert - The defendant objected to the amendment - The plaintiff argued that the amendment merely particularized its original pleadings - The Alberta Court of Queen's Bench stated that although the plaintiffs' original pleadings made broad claims for ongoing and repeated publications of the Quality Alert, the specificity required in defamation pleadings made it impossible to conclude that the January 13th email was a particularization of the original claim - See paragraphs 21 to 26.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances where amendment denied - The plaintiffs sued the defendant for damages for defamation and injurious falsehood - The plaintiffs applied to make substantial amendments to their statement of claim - The defendant objected to some of the amendments - The Alberta Court of Queen's Bench denied the amendments to paragraphs 40 to 51 noting that it had refused to allow the plaintiffs to make similar amendments to their pleadings (statement of defence) in a related case where the plaintiffs were the defendants - See paragraphs 13 and 14.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances where amendment denied - The plaintiffs sued the defendant for damages for defamation and injurious falsehood - The plaintiffs applied to make substantial amendments to their statement of claim - The defendant objected to some of the amendments - The Alberta Court of Queen's Bench denied the amendments to paragraphs 7 to 10 and 12 to 51 because those paragraphs contained no material or relevant facts with respect to the torts of defamation and injurious falsehood - See paragraph 15.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances where amendment denied - The plaintiff sued the defendant for damages for defamation and injurious falsehood, arising from a Quality Alert Document published by the defendant respecting the plaintiff's product - The plaintiffs applied to make substantial amendments to their statement of claim - Paragraph 55 of the proposed amended statement of claim was composed of 10 sub-paragraphs - Each was a different submission by the plaintiff that the Quality Alert Document was defamatory and slandered their product - The Alberta Court of Queen's Bench denied the amendment where the paragraph was wholly argument and was therefore an improper pleading - Further, there was no evidence to support the amendment - See paragraph 17.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances where amendment denied - The plaintiffs sued the defendant for damages for defamation and injurious falsehood, arising from statements made by the defendant respecting the plaintiffs' steel pipe product - The plaintiffs applied to make substantial amendments to their statement of claim - Paragraph 57 alleged that the defendant stated verbally and by email that "the piping materials manufactured by (the Plaintiffs) are defective" and "the piping materials manufactured by Petrotub do not meet the standard for A106B pipe" - The Alberta Court of Queen's Bench disallowed the amendment because there was no evidentiary basis supporting the amendment - See paragraphs 18 to 20.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances where amendment denied - [See first Practice - Topic 2111 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See fourth Libel and Slander - Topic 6128 ].

Torts - Topic 5101

Interference with economic relations - Injurious falsehood - General - The Alberta Court of Queen's Bench stated that the tort of injurious falsehood was known as slander of goods and malicious falsehood - The elements of the tort were: "1. There must have been a statement made of and concerning the goods of the plaintiff. 2. The statement must have been false. 3. The statement must have been published maliciously, that is to say, dishonestly or with improper notice, and 4. The plaintiff must have suffered special damages." - The court stated that injurious falsehood protected a person's business and commercial interests while defamation protected a person's reputation - See paragraphs 113 and 114.

Torts - Topic 5118

Interference with economic relations - Injurious falsehood - Pleading - [See fourth Libel and Slander - Topic 6128 ].

Cases Noticed:

Malborough Ford Sales Ltd. v. Ford Motor Co. of Canada Ltd. (2003), 13 Alta. L.R.(4th) 336; 2003 ABQB 298, refd to. [para. 17].

Neuschaefer v. Leskiw et al. (2008), 435 A.R. 350; 2008 ABQB 18, refd to. [para. 19].

Lougheed v. Canadian Broadcasting Corp., [1978] 4 W.W.R. 358; 11 A.R. 55 (T.D.), refd to. [para. 19].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 1999 ABCA 231, refd to. [para. 22].

Stolk v. 382779 Alberta Inc. et al. (2005), 383 A.R. 203; 2005 ABQB 440, refd to. [para. 22].

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al. (2000), 257 A.R. 343; 2000 ABQB 39, refd to. [para. 22].

Shinkaruk v. Jones and Russwood Broadcasting et al. (1985), 41 Sask.R. 187 (Q.B.), refd to. [para. 23].

Skinkaruk v. Saskatoon (City) - see Shinkaruk v. Jones and Russwood Broadcasting et al.

Cooper et al. v. Hennan et al. (2005), 393 A.R. 146; 2005 ABQB 709, refd to. [para. 25].

DeSoto Resources Ltd. v. EnCana Corp. et al. (2010), 487 A.R. 138; 495 W.A.C. 138; 2010 ABCA 110, refd to. [para. 35].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, affd. (2006), 401 A.R. 215; 391 W.A.C. 215; 2006 ABCA 355, refd to. [para. 35].

Divestco Inc. v. Devon Energy Corp. et al. (2011), 530 A.R. 133; 2011 ABQB 750 (Master), refd to. [para. 38].

Dow Chemical Canada Inc. et al. v. Nova Chemicals Corp. (2010), 495 A.R. 338; 2010 ABQB 524, refd to. [para. 38].

Dickhoff v. Armadale Communications Ltd. et al. (1993), 113 Sask.R. 285; 52 W.A.C. 285; 106 D.L.R.(4th) 464 (C.A.), refd to. [para. 47].

Pootlass v. Pootlass (1999), 5 B.C.T.C. 21; 63 B.C.L.R.(3d) 305; 32 C.P.C.(4th) 70 (S.C.), refd to. [para. 48].

Herron v. KING Broadcasting Co. (1987), 746 P.2d 295 (Wash.), refd to. [para. 51].

State v. Superior Court (1996), 921 P.2d 697 (Ariz. App.), refd to. [para. 53].

Caudle v. Thomason (1996), 942 F.Supp. 635 (D.D.C.), refd to. [para. 54].

Luisi v. JWT Group Inc. (1985), 488 N.Y.S.2d 554 (Sup.), refd to. [para. 56].

Brown v. Cole et al., [1994] B.C.T.C. Uned. E04; 1994 CarswellBC 3019 (S.C. Master), affd. [1994] B.C.T.C. Uned. G83; 1994 CarswellBC 1859 (S.C.), dist. [para. 59].

McIvor v. Manitoba Keewatinowi Okimakanak Inc., [2005] Man.R.(2d) Uned. 85; 2005 MBQB 214 (Q.B. Master), refd to. [para. 65].

Duke v. Puts, [1998] 6 W.W.R. 510 (Sask. Q.B.), refd to. [para. 68].

Weber v. Cueto (1993), 624 N.E.2d 442 (Ill. App. 5 Dist.), refd to. [para. 82].

Pacific Coast Savings Insurance Services Ltd. v. Strong et al., [1996] B.C.T.C. Uned. E47; 4 C.P.C.(4th) 37 (S.C.), dist. [para. 87].

Cahoon v. Franks, [1967] S.C.R. 455; 1967 CarswellAlta 48, dist. [para. 91].

Grey Condominium Corp. No. 27 v. Blue Mountain Resorts Ltd. et al., [2007] O.T.C. Uned. 973; 277 D.L.R.(4th) 644 (Sup. Ct.), affd. (2008), 238 O.A.C. 183; 90 O.R.(3d) 321; 2008 ONCA 384, refd to. [para. 93].

Chohan v. Casdky et al. (2009), 464 A.R. 57; 467 W.A.C. 57; 2009 ABCA 334, refd to. [para. 104].

Malhab v. Diffusion Métromédia CMR inc. et al., [2011] 1 S.C.R. 214; 412 N.R. 1; 2011 SCC 9, refd to. [para. 106].

Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104 (C.A.), refd to. [para. 106].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 6 [para. 34].

Rules of Court (Alta.), rule 3.65 [para. 7]; rule 13.6(1), rule 13.6(2), rule 13.6(3), rule 13.7 [para. 9].

Authors and Works Noticed:

Brown, Raymond E., Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd Ed. 2013) (Looseleaf), pp. 1-31 [para. 104]; 5-60, 5-64 [para. 109]; 7-39 [para. 76]; 7-42 [para. 27]; 17-194 [para. 78]; 19-2 [para. 68]; 19-28 [para. 19]; 19-95 [para. 26]; 28-3, 28-4 [para. 114].

Klar, Lewis N., Tort Law (5th Ed. 2012), p. 837 [para. 113].

Osborne, Philip H., The Law of Torts (4th Ed. 2011), pp. 301 [para. 114]; 318, 319 [para. 113].

Counsel:

Stanley Carscallen, Q.C., Lillian Pan, Hema Ahuja, Piotr Bychawski and Christy Lee (Carscallen LLP), for the plaintiffs (applicants/respondents), Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A., and as Ispat Petrotub S.A. and sometimes known as Ispat Petrotubas S.A. Romania, and ArcelorMittal Galati S.A. formerly known as Mittal Steel Galati S.A. and as Ispat Sidex S.A. and sometimes known as Ispat Sidex S.A. Romani, and ArcelorMittal Pipes & Tubes Galati S.R.L;

Jeff E. Sharpe, David Strand, Julie Taylor and Paul Chiswell (Burnet, Duckworth & Palmer LLP), for the defendant (applicant/respondent), Canadian Natural Resources Limited.

These applications were heard in Calgary, Alberta, before Hughes, J., of the Alberta Court of Queen's Bench, who delivered the following decision on October 8, 2013.