Gulka Enterprises Ltd. v. Bayer CropScience Inc., 2009 SKQB 101

• Judge: Konkin, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 16, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 101;(2009), 328 Sask.R. 155 (QB)

Gulka Ent. Ltd. v. Bayer CropScience (2009), 328 Sask.R. 155 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AP.037

Gulka Enterprises Ltd. (applicant/plaintiff) v. Bayer CropScience Inc. (respondent/defendant)

(2006 Q.B.G. No. 1560; 2009 SKQB 101)

Indexed As: Gulka Enterprises Ltd. v. Bayer CropScience Inc.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Konkin, J.

March 16, 2009.

Summary:

The plaintiff applied for an order compelling the defendant to comply with two undertakings that had been requested of it during an examination for discovery.

The Saskatchewan Court of Queen's Bench ordered compliance with one of the undertakings and not the other because of privilege concerns.

Practice - Topic 4571

Discovery - What documents must be produced - Documents referred to in pleadings - [See Practice - Topic 4580 ].

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See Practice - Topic 4580 ].

Practice - Topic 4580

Discovery - What documents must be produced - Privileged documents - Documents prepared for the purpose of settlement - The plaintiff sued the defendant claiming that use of a herbicide mix manufactured by the defendant caused crop damage - During an examination for discovery, the plaintiff requested undertakings for the defendant to produce records dealing with other complaints regarding the performance of its herbicide product on flax (undertaking 6) and to provide particulars of any settlements between the defendant and other farmers regarding complaints about its products on wild oats (undertaking 8) - The defendant refused to accept the undertakings - The plaintiff sought to compel compliance - The Saskatchewan Court of Queen's Bench noted that in Saskatchewan the test to be applied to determine whether to order the defendant to answer the undertakings was the "broad relevance test" - However, to be broadly relevant a document had to be relevant to an issue between the parties and that issue had to be demonstrable from the pleadings - After examining the pleadings, the court concluded that the product inquiry or complaint forms identified in undertaking 6 for the Province of Saskatchewan were broadly relevant to the inquiry in question and should be produced - With respect to disclosure of the settlement communications referred to in undertaking 8, the court concluded that it was dealing with clearly unrelated matters between unrelated parties and therefore the documents were in fact privileged and confidential documents and not disclosable.

Cases Noticed:

Cominco Ltd. v. Phillips Cables Ltd. et al., [1987] 3 W.W.R. 562; 54 Sask.R. 134 (C.A.), refd to. [para. 4].

Czuy v. Mitchell et al., [1976] 6 W.W.R. 676; 1 A.R. 434; 1 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 4].

Bank of Montreal v. 3D Properties Inc. et al. (No. 3) (1993), 110 Sask.R. 302 (Q.B.), refd to. [para. 5].

Compagnie Financière Du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.), refd to. [para. 5].

Schetky v. Cochrane, [1918] 1 W.W.R. 821; 24 B.C.R. 496 (C.A.), refd to. [para. 18].

Derco Industries Ltd. v. Grimwood (A.R.) Ltd. et al., [1985] 2 W.W.R. 137; 57 B.C.L.R. 395 (C.A.), refd to. [para. 18].

Middelkamp et al. v. Fraser Valley Real Estate Board et al. (1992), 17 B.C.A.C. 134; 29 W.A.C. 134; 96 D.L.R.(4th) 227 (C.A.), refd to. [para. 20].

Milton Farms Ltd. v. Dow Chemical Canada Inc. (1987), 63 Sask.R. 144 (Q.B.), refd to. [para. 21].

Newbery Energy Ltd. v. Amok Ltd., [1988] 1 W.W.R. 424; 62 Sask.R. 1 (Q.B.), refd to. [para. 22].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 231, rule 232 [para. 3].

Counsel:

Jaela D. Shockey, for the applicant, Gulka;

Bruce W. Wirth, for the respondent, Bayer.

This matter was heard before Konkin, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on March 16, 2009.