Ipsco Inc. v. Saskatchewan Water Corp., (1998) 162 Sask.R. 111 (QB)

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 26, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 162 Sask.R. 111 (QB)

Ipsco Inc. v. Sask. Water Corp. (1998), 162 Sask.R. 111 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. FE.012

Ipsco Inc. (plaintiff) v. Saskatchewan Water Corporation (defendant)

Saskatchewan Water Corporation (plaintiff by counterclaim) v. Ipsco Inc. and Zurich Insurance Company (defendants by counterclaim) and NOT HK Canada Inc. (third party by counterclaim)

(1994 Q.B. No. 3110)

Indexed As: Ipsco Inc. v. Saskatchewan Water Corp.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gunn, J.

January 26, 1998.

Summary:

Ipsco supplied materials to Sask Water for the construction of a water pipeline. HK was Ipsco's subcontractor. There were leakage problems. Sask Water retained a consultant (MCS) to investigate the problem. A report was prepared. HK sought production of the report and other documents, which Sask Water claimed were privileged.

The Saskatchewan Court of Queen's Bench determined which documents should be produced.

Practice - Topic 4573.2

Discovery - What documents must be produced - Test results - Ipsco supplied materials to Sask Water for the construc­tion of a water pipeline - HK was Ipsco's subcontractor - There were leakage prob­lems - In December 1993, after consulting its in-house counsel, Sask Water retained MCS to conduct testing to determine the cause of the problem - MCS was directed to prepare a formal report for use in pur­suing a claim against Ipsco and others - Sask Water retained outside counsel on February 10, 1994 - The report was issued in April 1994 - HK sought production of the report - The Saskatchewan Court of Queen's Bench held that the report was privileged - Although MCS was initially retained to help Sask Water identify the cause of the leaks, litigation was contem­plated and the report was commis­sioned for litigation purposes when MCS was directed to prepare a report - See para­graphs 3 to 11.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Docu­ments prepared in contemplation of litiga­tion - [See Practice - Topic 4573.2 ].

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - Ipsco supplied materials to Sask Water for the construction of a water pipe - HK was Ipsco's subcontractor - There were leakage problems - MCS was retained to conduct testing and prepare a report on the cause of the problem - The report was subject to litigation privilege - HK claimed that Sask Water had waived privilege where: Ipsco attended the first day of testing; Sask Water and Ipsco dis­cussed the leakage problems on a without prejudice basis during a meeting; portion of the report had been revealed to HK by Ipsco; and the report had been referred to and relied upon in a producible letter to Sask Water - The Saskatchewan Court of Queen's Bench held that Sask Water had not waived its privilege over the report - See paragraphs 12 to 26.

Cases Noticed:

Bank of Montreal v. 3D Properties Inc. et al. (No. 2) (1993), 11 Sask.R. 63 (Q.B.), refd to. [para. 3].

Gulf Canada Ltd. v. Horton CBI Ltd. (1990), 85 Sask.R. 196 (Q.B.), refd to. [para. 5].

Laxton Holdings Ltd. et al. v. Lloyd's Nonmarine Underwriters et al. (1988), 72 Sask.R. 313 (C.A.), refd to. [para. 6].

Waugh v. British Railways Board, [1979] 2 All. E.R. 1169, refd to. [para. 6].

International Minerals & Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1992), 107 Sask.R. 196 (Q.B.), refd to. [para. 7].

Regina District Health Board v. Johnson Controls Ltd. (1997), 159 Sask.R. 64 (Q.B.), refd to. [para. 8].

Syncrude Canada Ltd. et al. v. Babcock & Wilcox Ltd. et al. (1993), 135 A.R. 21; 33 W.A.C. 21 (C.A.), refd to. [para. 24].

R. v. Perron (1990), 54 C.C.C.(3d) 108 (Que. C.A.), refd to. [para. 25].

James v. Maloney, [1973] 1 O.R. 656 (H.C.), refd to. [para. 29].

Authors and Works Noticed:

McCormick on Evidence (3rd. Ed. 1984), p. 223 [para. 25].

Counsel:

Gary D. Young, Q.C., for NOT HK Canada Inc.;

Fred C. Zinkhan, for Saskatchewan Water Corp.

This application was heard before Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who de­livered the following judg­ment on January 26, 1998.