Canadian Natural Resources Ltd. v. Arcelormittal Tubular Products Roman S.A. et al., 2013 ABQB 439

• Judge: Hughes, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 01, 2013
• Citations: 2013 ABQB 439;(2013), 558 A.R. 361 (QB)

Cdn. Natural Resources v. Arcelormittal Tubular (2013), 558 A.R. 361 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.095

Canadian Natural Resources Limited (plaintiff) v. Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A., Mittal Steel North America Inc., Emco Corporation carrying on business under the firm name and style Westlund, Vass Pipe and Steel Co. Inc. and Arcelormittal XYZ Corp. (defendants) and Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A., Arcelormittal USA Inc., Mittal Steel North America Inc. formerly known as Ispat North America Inc., Vass Pipe and Steel Co. Inc., Emco Corporation carrying on business under the firm name and style Westlund, Fluor Canada Ltd., BNB Trading Inc., Trident Steel Corporation, TIC Canada ULC, PCL Industrial Constructors Inc., Willbros Canada Holdings ULC, Canadian Natural Resources Limited, John Doe, ABC Company and XYZ Company (third parties)

(0701 03377)

Canadian Natural Resources Limited (plaintiff) v. Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A., Mittal Steel North America Inc., Vass Pipe and Steel Co. Inc., BHD Tubular Limited and Arcelormittal XYZ Corp. (defendants) and Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A., Arcelormittal S.A. Inc. formerly Mittal Steel, N.V., Arcelormittal USA Inc., Mittal Steel North America Inc., formerly known as Ispat North America Inc., Vass Pipe and Steel Co. Inc., BHD Tubular Limited, Fluor Canada Ltd., BNB Trading Inc., Trident Steel Corporation, Pioneer Steel & Tube Corp., TIC Canada ULC, PCL Industrial Constructors Inc., Willbros Canada Holdings ULC, Canadian Natural Resources Limited, John Doe, ABC Company and XYZ Company (third parties)

(0701 03553; 2013 ABQB 439)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

August 1, 2013.

Summary:

Canadian Natural Resources Ltd. (CNRL) obtained pipe (the subject pipe) through various distributors for use in its oil sands production facility, the Horizon Project, including from Arcelormittal Tubular Products Roman S.A. (formerly known as Mittal Steel Roman S.A.) (manufacturer) and Mittal Steel North America Inc. (distributor) (the Mittal defendants). The subject pipe was to be manufactured to the American Society for Testing and Materials A106 Grade B Specification or Standard. CNRL alleged that some of the pipe was defective and had to be removed and replaced. CNRL commenced two actions against the Mittal defendants and other parties in the supply chain, including Emco (pipe supplier) and Vass (pipe distributor) respecting the pipe. The matter was under case management. CNRL applied for an order that questions, records or information regarding "concerns, complaints or issues regarding the quality of all A106 Grade B pipe manufactured by Mittal at its Roman Mill between 1999-2006" were relevant and material and should be produced.

The Alberta Court of Queen's Bench declared to be relevant and material any information in the possession or control of any of the defendants relating to defects that went to the quality of other A106 Grade B pipe, or other A106 Grade B pipe that failed in testing, manufactured by Mittal at its Roman Mill, in 2004-2006, as well as actions proposed or taken by Mittal to improve the quality of A106 Grade B pipe at the Roman Mill between 1999-2006. The defendants were also ordered to produce any records previously withheld or redacted which fell within the ambit of what the court declared to be producible. The court directed the defendants to serve a sworn supplementary affidavit of records. The defendants also had to produce at their own expense the witnesses and corporate representatives already examined to answer questions about these matters.

Practice - Topic 4151

Discovery - General principles - Nature and scope of discovery - The Alberta Court of Queen's Bench discussed the scope of discovery under rule 5.2 of the 2010 Rules of Court - See paragraphs 20 to 26.

Practice - Topic 4151

Discovery - General principles - Nature and scope of discovery - The plaintiff sued the defendant manufacturer et al., alleging quality problems with carbon steel pipe - The plaintiff sought production of records and information from 1999 to 2006 relating to "concerns, complaints or issues" respecting the quality of the pipe - The defendant argued that the expense and effort of retrieving, reviewing and producing the records was too disproportionate to their likely probative value - The Alberta Court of Queen's Bench agreed that the request was too broad and that the records, information or questions had to relate to defects that went to quality of other pipe or pipe that failed testing manufactured by the defendant at its mill as well as actions proposed to improve the quality of the pipe - The court also limited the time frame for which material had to be provided - See paragraphs 49 to 61.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to issues between the parties - [See Practice - Topic 4572.1 and first Practice - Topic 4573 ].

Practice - Topic 4572.1

Discovery - What documents must be produced - Documents related to similar fact evidence - The plaintiff sued the defendant manufacturer et al., alleging quality problems with carbon steel pipe (subject pipe) - The plaintiff sought production of information about quality problems with similar grade pipe - The defendants refused, claiming that the evidence sought was similar fact evidence or tertiary evidence and was not admissible - The Alberta Court of Queen's Bench (case management judge) stated that just because similar fact evidence was presumptively inadmissible that did not make the information not relevant - Determination of admissibility was a matter for the trial judge - Here, the pleadings raised product liability issues - Thus, if defects were prevalent in other pipe manufactured at the defendant's mill, such evidence might well be relevant in determining whether the subject pipe was negligently manufactured and as such it would qualify as "secondary" evidence and was, therefore, relevant - See paragraphs 19 to 41.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - The plaintiff sued the defendant manufacturer et al., alleging quality problems with carbon steel pipe - The plaintiff sought to have questions answered and records or information produced relating to complaints received by the defendants respecting the quality of the pipe - The Alberta Court of Queen's Bench agreed that questions, records or information relating to complaints about the pipe could elicit facts of primary relevance that went to knowledge and the duty to warn and to the plaintiff's duty to mitigate and were therefore relevant - See paragraphs 42 to 48.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See Practice - Topic 4572.1 ].

Practice - Topic 4598.1

Discovery - What documents must be produced - Particular matters - Product liability cases - [See second Practice - Topic 4151 , Practice - Topic 4572.1 and first Practice - Topic 4573 ].

Cases Noticed:

A.M. et al. v. Matthews et al., [2011] A.R. Uned. 251; 2011 ABQB 187, refd to. [para. 23].

Johnston v. Bryant et al. (2003), 327 A.R. 378; 296 W.A.C. 378; 2003 ABCA 169, refd to. [para. 23].

Mustard v. Brache (2006), 397 A.R. 361; 384 W.A.C. 361; 2006 ABCA 265, refd to. [para. 24].

NAC Constructors Ltd. v. Alberta Capital Region Wastewater Commission (2006), 412 A.R. 272; 404 W.A.C. 272; 2006 ABCA 246, refd to. [para. 24].

Hunka et al. v. Degner et al., [2011] A.R. Uned. 72; 2011 CarswellAlta 472; 2011 ABQB 195, refd to. [para. 25].

Toronto-Dominion Bank v. Suitel Canada Executive Suites Corp. et al. (2012), 549 A.R. 43; 2012 ABQB 699, refd to. [para. 25].

Weatherill Estate v. Weatherill et al. (2003), 337 A.R. 180; 2003 ABQB 69, refd to. [para. 26].

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321; 145 C.C.C.(3d) 449 (C.A.), refd to. [para. 32].

K.N. v. Alberta et al. (1999), 243 A.R. 94; 174 D.L.R.(4th) 366; 1999 ABQB 270, refd to. [para. 33].

Trans Border Plastics Ltd. v. Leavens Air Charter Ltd. (1982), 36 O.R.(2d) 731 (H.C. Master), refd to. [para. 34].

Tachit v. Versatile Manufacturing Ltd. and Hardisty Motors (1973) Ltd. (1978), 11 A.R. 544 (Dist. Ct.), refd to. [para. 35].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 38].

Cheyne v. Alberta, 2003 ABQB 244, refd to. [para. 38].

T.W. v. University of Alberta Hospital et al. (2000), 267 A.R. 169; 2000 ABQB 387, refd to. [para. 38].

Dura-Lite Heat Transfer Products Ltd. v. Wasteco Environmental Services Ltd. (2008), 453 A.R. 362; 2008 ABQB 494, affd. (2010), 469 A.R. 350; 470 W.A.C. 350; 2010 ABCA 12, refd to. [para. 42].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, refd to. [para. 43].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 43].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 44].

Canadian Western Natural Gas Co. Ltd. v. Pathfinder Surveys Ltd. (1980), 21 A.R. 459; 12 Alta. L.R.(2d) 135 (C.A.), refd to. [para. 44].

Quintette Coal Ltd. v. Bow Valley Resource Services Ltd., [1986] B.C.W.L.D. 1806; 19 C.L.R. 153 (B.C.S.C.), refd to. [para. 44].

Innovative Health Group Inc. v. Calgary Health Region (2008), 433 A.R. 312; 429 W.A.C. 312; 2008 ABCA 219, refd to. [para. 51].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 5.2(1)(a), rule 5.2(1)(b), rule 5.25(1)(a), rule 5.6(1)(b)(i), rule 5.6(1)(b)(ii) [para. 20].

Authors and Works Noticed:

Theall, Lawrence G., Maidment, J. Scott, Dufort, Theresa M., and Brown, Jeffrey A., Product Liability: Canadian Law and Practice (2012) (Looseleaf), pp. P2-10, P2-11 [para. 32]; P2-22 [para. 28].

Counsel:

Jeff E. Sharpe, David H. Strand and Julie J. M. Inch (Burnet, Duckworth & Palmer LLP), for the plaintiff, Canadian Natural Resources Limited;

Stanley Carscallen, Q.C., Lillian Y. Pan and Hema Ahuja (Carscallen LLP), for the defendants/third parties, Arcelormittal Tubular Products Roman S.A., formerly known as Mittal Steel Roman S.A., Arcelormittal USA Inc., Mittal Steel North America Inc. formerly known as ISPAT North America Inc;

Mendy M. Chernos, Michael D. Briggs and Lars L. Herwig (McCarthy Tétrault LLP), for the defendant/third party, Emco Corporation;

Warren P. Foley (Gowling Lafleur Henderson LLP), for the defendant/third party, Vass Pipe and Steel Co. Inc.

This application was heard before Hughes, J., of the Alberta Court of Queen's Bench, Calgary Registry, who delivered the following memorandum of judgment on August 1, 2013.