Burns Estate v. Burns (P.) Resources Ltd. et al., 2015 ABCA 390

• Judge: Paperny, Bielby and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 09, 2015
• Citations: 2015 ABCA 390;(2015), 612 A.R. 63

Burns Estate v. Burns (P.) Resources Ltd. (2015), 612 A.R. 63; 662 W.A.C. 63 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. DE.068

P. Burns Resources Limited, P. Burns Coal Mines Limited, Patrick D. Burns, Lawrence T. Farrell, John L. Horan, Timothy E. McGee and Craig Sparrow (appellants)

(defendants/respondents) v. Royal Trust Company of Canada in its Capacity as the Trustee of the Honourable Patrick Burns Memorial Trust (respondent)

(plaintiff/applicant)

(1501-0169-AC; 2015 ABCA 390)

Indexed As: Burns Estate v. Burns (P.) Resources Ltd. et al.

Alberta Court of Appeal

Paperny, Bielby and Veldhuis, JJ.A.

December 9, 2015.

Summary:

Two of the defendants in an oppression action applied for the summary dismissal of part of the case. The plaintiff responded by seeking to cross-examine on the defendants' affidavit of records and to conduct discoveries. To accomplish this, the plaintiff served an appointment for cross-examination of the defendants' deponent of the affidavit of records, and appointments for discovery on the defendants. The defendants moved to set aside those appointments and to set the date for the hearing of the summary dismissal application.

A Master of the Alberta Court of Queen's Bench, in a decision reported at [2014] A.R. Uned. 778, held that the plaintiff was not entitled as of right to production of documents and discovery prior to the hearing of the summary judgment application. The Master set aside the appointments for cross-examination on the affidavit of records and two appointments for questioning. The plaintiff issued appointments on the corporate representative of the defendants and a director respecting the balance of the matters that were not the subject of a summary dismissal application. The defendants expanded their application for summary judgment to include the entire claim and refused to attend the appointments. The plaintiff applied for an order requiring the defendants to attend the appointments.

A Master of the Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. Uned. 396, refused to order attendance. The Master made no inquiry into the nature of the action or the nature of the application, but proceeded on the basis that, in the face of a summary dismissal application or an application for summary judgment, the rules related to questioning and document production should be put on hold. The plaintiff appealed the Master's decisions.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. Uned. 395, allowed the appeals, holding that the Rules of Court did not require as a default position that the usual procedures relating to document production and questioning be put on hold pending an application for summary judgment or summary dismissal. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal.

Practice - Topic 4160

Discovery - General principles - When available - A Master issued two decisions in an oppression action, holding that the plaintiff was not entitled to the usual procedures for production of documents and questioning prior to the hearing of an application for summary dismissal - A chambers judge allowed the plaintiff's appeal - The Alberta Court of Appeal affirmed the chambers judge's decision - The Rules of Court did not require as a default position that the usual procedures relating to document production and questioning under Part 5 of the Rules be put on hold pending an application for summary judgment or summary dismissal - Rule 5. 3 provided that the court could modify or waive any right or power under that Part if "the expense, delay, danger or difficulty in complying with a rule would be grossly proportionate to the likely benefit" - That provision left the matter in the court's discretion - Where the nature of the action was such that much of the evidence supporting the cause of action was likely to be in the defendants' sole possession, the plaintiff was more likely to require access to disclosure of documents and questioning to be able to make full answer to any subsequent summary judgment application - The court's discretion had to be exercised giving due consideration to the purposes of Part 5, which included facilitating resolution of issues and discouraging "conduct that unnecessarily or improperly delays proceedings or unnecessarily increases their costs" (rule 5.1(1)) - The judge reviewed the Master's decisions for correctness and determined that the Master's approach to the Part 5 disclosure obligations was incorrect - The judge's review of the nature of the action and the state of the parties' respective knowledge led him to conclude that it was appropriate to allow the requested questioning prior to the hearing of the summary judgment application - There was no reviewable error in that conclusion.

Practice - Topic 4160.2

Discovery - General principles - Examination for discovery before summary judgment - [See Practice - Topic 4160 ].

Practice - Topic 4551

Discovery - Production and inspection of documents - General - Circumstances when available - [See Practice - Topic 4160 ].

Cases Noticed:

Bahcheli v. Yorkton Securities Inc. et al., [2010] A.R. Uned. 923; 2010 ABQB 824, affd. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 10].

Geophysical Service Inc. v. Husky Oil Ltd. et al. (2013), 544 A.R. 1; 567 W.A.C. 1 (C.A.), refd to. [para. 10].

Statutes Noticed:

Rules of Court (Alta.), rule 5.3, Part 5 [para. 7].

Counsel:

M.J. Epp and S.A. Carrie, for the appellants;

G.N. Stapon, Q.C., for the respondent.

This appeal was heard on December 9, 2015, by Paperny, Bielby and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered orally by Paperny, J.A., for the court on December 9, 2015, and was filed at Calgary, Alberta, on December 11, 2015.