Canadian Natural Resources Ltd. v. ShawCor Ltd. et al., 2014 ABCA 289

• Judge: Fraser, C.J.A., Conrad and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 07, 2013
• Citations: 2014 ABCA 289;(2014), 580 A.R. 265

Cdn. Natural Resources v. ShawCor Ltd. (2014), 580 A.R. 265; 620 W.A.C. 265 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. SE.074

Canadian Natural Resources Limited (respondent/plaintiff) v. ShawCor Ltd., Shaw Pipe Protection Ltd., Bredero Shaw Company Limited (appellants/defendants) and IMV Projects Inc., Flint Field Services Ltd., Flint Pipeline Services Ltd., formerly Transline Energy Services Ltd., ABC Ltd., and XYZ Inc. (not parties to the appeal/defendants) and Ram River Pipeline Outfitters Ltd. and Dunn Hiebert & Associates Ltd. (not parties to the appeal/third party defendants)

(1301-0128-AC; 2014 ABCA 289)

Indexed As: Canadian Natural Resources Ltd. v. ShawCor Ltd. et al.

Alberta Court of Appeal

Fraser, C.J.A., Conrad and Watson, JJ.A.

September 15, 2014.

Summary:

The defendants applied for an order compelling the plaintiff to provide a further and better Affidavit of Records.

The Alberta Court of Queen's Bench, in a decision reported at 559 A.R. 66, dismissed the application. The defendants appealed.

The Alberta Court of Appeal allowed the appeal.

Practice - Topic 4575

Discovery - What documents must be produced - Privilege - General - Canadian Natural Resources Ltd. (CNRL) sued the defendants, ShawCor Ltd., Shaw Pipe Protection Ltd. and Bredero Shaw Company Limited along with others for damages relating to the alleged improper design and construction of its 32 kilometre pipeline running between its Primrose East Plant and its Wolf Lake Plant - The pipeline, completed in 2008, had been designed, constructed and installed by ShawCor and others - CNRL asserted that its damages flowed from the need to replace the pipeline following a well blowout - ShawCor applied for an order that CNRL provide a further and better affidavit of records, asserting that CNRL had not disclosed all of the records in its possession in four critical areas - At issue was rule 5 of the Alberta Rules of Court relating to the content of an affidavit of records where a party claimed privilege - The case management judge dismissed the application - CNRL appealed - The Alberta Court of Appeal allowed the appeal - Records where privilege was asserted had to be dealt with individually - Each record had to be numbered in a convenient order and briefly described, short of disclosing privileged information - Records could be bundled where privilege was being asserted providing that the bundled record otherwise met the requirements of rule 5.7 - In accordance with Rule 5.8, a party had to also identify the grounds for claiming privilege with respect to each record in order to assist other parties in assessing the validity of the claim - This latter requirement meant that, for each record, a party had to state the particular privilege being asserted and describe the record in a way, again without revealing information that was privileged, that indicated how the record fit within the claimed privilege - The description of all relevant and material records over which privilege was claimed should be set out in Schedule 2 of Form 26 in the separate categories contemplated therein - CNRL's affidavits did not comply with these requirements - The first affidavit made a blanket claim of privilege over an undisclosed number of documents and merely listed the privilege categories set out in Schedule 2 of Form 26, with nothing added except the word "NIL" in reference to the "Other" category - While later affidavits disclosed the number of records over which privilege was claimed, namely 1,058, and stated that these records fell into five discrete categories, this too fell well short of what was required under the Rules - CNRL was directed to prepare a new or supplementary affidavit in compliance with the Rules and this judgment - See paragraphs 28 to 73.

Cases Noticed:

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 4].

Dorchak v. Krupka (1997), 196 A.R. 81; 141 W.A.C. 81 (C.A.), refd to. [para. 23].

Attila Dogan Construction and Installation Co. v. AMEC Americas Ltd. et al. (2011), 530 A.R. 264; 2011 ABQB 794, refd to. [para. 23].

Can-Air Services Ltd. v. British Aviation Insurance Co. (1988), 91 A.R. 258; 63 Alta. L.R.(2d) 61 (C.A.), refd to. [para. 24].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 26].

Dow Chemical Canada ULC et al. v. Nova Chemicals Corp. (2014), 577 A.R. 335; 613 W.A.C. 335; 2014 ABCA 244, refd to. [para. 26].

Edmonton Flying Club et al. v. Edmonton Regional Airports Authority et al. (2013), 544 A.R. 6; 567 W.A.C. 6; 2013 ABCA 91, refd to. [para. 26].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 30].

Gallant v. Farries (2012), 522 A.R. 13; 544 W.A.C. 13; 2012 ABCA 98, refd to. [para. 32].

Opron Construction Co. v. Alberta (1989), 100 A.R. 58 (C.A.), refd to. [para. 51].

Société d'énergie Foster Wheeler ltée v. Sociéte intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456; 318 N.R. 111; 2004 SCC 18, refd to. [para. 80].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 81].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1996), 184 A.R. 101; 22 W.A.C. 101; 1996 ABCA 141, refd to. [para. 81].

Nova, An Alberta Corp. v. Guelph Engineering Co. et al. and Daniel Valve Co. et al. (1984), 50 A.R. 199 (C.A.), refd to. [para. 82].

Ventouris v. Mountain, [1999] 1 W.L.R. 607 (Eng. C.A.), refd to. [para. 84].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 84].

Bennett v. State Farm Fire and Casualty Co. (2013), 398 N.B.R.(2d) 290; 1032 A.P.R. 290; 358 D.L.R.(4th) 229; 2013 NBCA 4, refd to. [para. 84].

Gichuru v. Information and Privacy Commissioner (B.C.) et al. (2014), 357 B.C.A.C. 260; 611 W.A.C. 260; 2014 BCCA 259, refd to. [para. 87].

Keefer Laundry Ltd. v. Pellerin Milnor Corp. et al., [2006] B.C.T.C. Uned. B56; 2006 BCSC 1180, refd to. [para. 87].

Statutes Noticed:

Rules of Court (Alta.), rule 5.6, rule 5.7, rule 5.8 [para. 35].

Authors and Works Noticed:

Alberta Law Reform Institute, Alberta Rules of Court Project, Document Discovery and Examination for Discovery (2002), No. 12.2, pp. 28, 29 [para. 58].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 391 [para. 32].

Counsel:

J.E. Sharpe and R. Martz, for the respondent;

C.C.J. Feasby and M. Burkett, for the appellants;

M. Mohamed, for IMV Projects Inc. (not party to the appeal);

W.J. Kenny, Q.C., for Flint Field Services Ltd. (not party to the appeal).

This appeal was heard on October 7, 2013, by Fraser, C.J.A., Conrad and Watson, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by the court on September 15, 2014.