Murphy Oil Co. et al. v. Predator Corp. et al., 2002 ABQB 403

• Judge: McMahon, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Thursday March 21, 2002
• Citations: 2002 ABQB 403;(2002), 316 A.R. 1 (QB)

Murphy Oil Co. v. Predator Corp. (2002), 316 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MY.017

Murphy Oil Company Ltd., Apache Canada Ltd., and Murphy Canada Exploration Company (plaintiffs) v. The Predator Corporation Ltd., Ricks Nova Scotia Co., and Predator Energies Partnership, Blair Longdo, Robert V. Shields and Gerry O'Reilly (defendants)

The Predator Corporation Ltd., Blair Longdo, Robert V. Shields and Gerry O'Reilly (plaintiffs by counterclaim/defendants) v. Murphy Oil Company Ltd., Apache Canada Ltd., and Murphy Canada Exploration Company, Harvey Doerr and Floyd Price (defendants by counterclaim/plaintiffs)

(Action No. 0001 19360; 2002 ABQB 403)

Indexed As: Murphy Oil Co. et al. v. Predator Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

April 26, 2002.

Summary:

Four of the defendants (plaintiffs by counterclaim) applied for leave to amend certain portions of their current statement of defence and counterclaim. Two plaintiffs (defendants by counterclaim) applied for a declaration and to dismiss a paragraph from the counterclaim. A third plaintiff (defendant by counterclaim) applied to strike certain paragraphs in the current counterclaim. Some preliminary evidentiary matters were also in issue.

The Alberta Court of Queen's Bench determined the issues accordingly.

Evidence - Topic 209

Inferences and weight of evidence - Inferences - Inference from possession - Of a document - The documents in possession doctrine provided that documents in the possession of a person, once authenticated, might be admissible against that person to show his or her knowledge of their contents - Such documents, if authenticated, might also be admissible to prove the truth of their contents if it was proven that the person in whose possession the documents were found had recognized, adopted or acted upon them as true - The Alberta Court of Queen's Bench held that it would be inappropriate to allow the documents in possession doctrine to operate on an application, where the absence of an opportunity to cross-examine removed the necessary protections underlying the doctrine - See paragraph 39.

Evidence - Topic 2102

Special modes of proof - Judicial admissions - What constitutes an admission - The defendant Shields was the president of the defendant corporation, Predator - Shields made an affidavit in a parallel action in which he was not a defendant - The Alberta Court of Queen's Bench held that Shield's affidavit was an "informal admission" against Predator - It was sworn by Shields, who identified himself in the first paragraph as Predator's president - The affidavit was not made inadvertently or hastily - It was made with knowledge of the facts and no new facts had since come to light - As Shields was not a party to the action in which the affidavit was sworn, he could not have been making admissions "personally", as opposed to on Predator's behalf - See paragraphs 45 to 52.

Evidence - Topic 2401.3

Special modes of proof - Presumptions - Specific presumptions - Inference of knowledge from possession of documents - [See Evidence - Topic 209 ].

Evidence - Topic 3201

Documentary evidence - Admission - General - The Alberta Court of Queen's Bench stated that "a document is not admissible on an application merely because it has been listed on an affidavit of records. An affidavit of records serves a different purpose than an affidavit for an application, which narrows the issues and evidence, gives the opposing party an idea of the case it faces, and allows the opposing party a chance to cross-examine on the affidavit and any attached materials." - See paragraph 26.

Evidence - Topic 3201

Documentary evidence - Admission - General - The Alberta Court of Queen's Bench held that on an application where substantive rights were in issue, it would be inappropriate to put documents from a party's production into evidence without any further evidentiary basis - See paragraphs 41 to 43.

Evidence - Topic 3201

Documentary evidence - Admission - General - The Alberta Court of Queen's Bench held that "Documents are not admissible on an application without being exhibited to a supporting affidavit, identified on discovery or on a cross-examination on such affidavit, or identified on viva voce evidence, unless the 'documents in possession' doctrine applies ..." - See paragraph 53.

Execution - Topic 7503

Equitable execution - When available - Murphy applied for a declaration that Predator had no claim to a 75% interest in a partnership and sought summary judgment - Predator alleged that a triable issue existed, namely, whether it potentially had rights to the 75% under the terms of the Partnership Agreement or, even if it had no such rights, whether the equitable remedy of a receiver was available to it if the trial judge found that Murphy tortiously interfered with its contractual relations with its partner by inducing a dissolution agreement - The Alberta Court of Queen's Bench granted the declaration summarily, holding that there was no principled reason to exercise the court's discretion to appoint a receiver - See paragraphs 117 to 126.

Practice - Topic 2131

Pleadings - Amendment of pleadings - Leave - Evidence - Defendants sought to amend their pleadings - The plaintiffs resisted on the basis that the proposed amendments were made in bad faith - The Alberta Court of Queen's Bench allowed the amendments where the plaintiffs provided no evidence of bad faith - Some evidence had to be provided to support an allegation of bad faith - In essence, the plaintiffs' argument was that the amendments were proposed in bad faith because they were an attempt to get further confidential information, which would be misused as the earlier confidential information had been misused - That was not evidence - See paragraphs 63 to 66.

Practice - Topic 3087

Applications and motions - Applications - Evidence on applications - [See Evidence - Topic 209 and all Evidence - Topic 3201 ].

Receivers - Topic 1737

Appointment - By court - Equitable execution - [See Execution - Topic 7503 ].

Cases Noticed:

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al. (2000), 262 A.R. 44 (Q.B.), refd to. [para. 14].

155569 Canada Ltd. v. 248524 Alberta Ltd. et al. (1993), 147 A.R. 90; 21 C.P.C.(3d) 159 (Q.B.), refd to. [para. 14].

Dix v. Canada et al., [2002] A.R. Uned. 145 (Q.B.), refd to. [para. 14].

Bottrell v. Bottrell (1994), 91 B.C.L.R.(2d) 300 (S.C.), affd. (1996), 26 B.C.L.R.(3d) 364 (C.A.), leave to appeal dismissed (1997), 215 N.R. 159; 95 B.C.A.C. 154; 154 W.A.C. 154 (S.C.C.), refd to. [para. 33].

Slough Estates Canada Ltd. v. Federal Pioneer Ltd. (1994), 20 O.R.(3d) 429 (Gen. Div.), refd to. [para. 34].

Dassen Gold Resources Ltd. et al. v. Royal Bank of Canada (1993), 138 A.R. 275 (Q.B.), refd to. [para. 36].

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al., [2000] A.R. Uned. 254 (Q.B.), refd to. [para. 38].

Warren Industrial Feldspar Co. v. Union Carbide Canada Ltd. et al. (1986), 54 O.R.(2d) 213 (H.C.), refd to. [para. 40].

Alberta Central Airways Ltd. v. Progressive Air Services Ltd. et al. (1999), 250 A.R. 160; 213 W.A.C. 160 (C.A.), refd to. [para. 41].

Gerling Global General Insurance Co. et al. v. Canadian Occidental Petroleum Ltd. et al. (1998), 230 A.R. 39 (Q.B.), refd to. [para. 46].

Becker v. Director of Employment Standards (Alta.) et al. (2000), 277 A.R. 131; 242 W.A.C. 131 (C.A.), leave to appeal dismissed (2001), 275 N.R. 396; 299 A.R. 134; 266 W.A.C. 134 (S.C.C.), refd to. [para. 47].

Caviglia v. Tenorio (1992), 71 B.C.L.R.(2d) 255 (S.C.), refd to. [para. 48].

Rago Millwork & Supplies Co. v. Woodhouse (D.) Construction Ltd. (1981), 28 A.R. 599 (Q.B. Master), refd to. [para. 60].

Mikisew Cree First Nation v. Canada et al. (2000), 278 A.R. 375 (Q.B.), refd to. [para. 60].

Anderson Exploration Ltd. et al. v. Pan-Alberta Gas Ltd. (1998), 224 A.R. 109 (Q.B.), refd to. [para. 61].

Pike et al. v. Pemberton Securities Inc. et al. (1997), 207 A.R. 42 (Q.B.), refd to. [para. 63].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (2000), 269 A.R. 49 (Q.B.), refd to. [para. 63].

Beck v. Edmonton (City) et al. (1991), 118 A.R. 107 (Q.B.), folld. [para. 64].

International Warranty Co. (Receiver of) v. International Warranty Co. (Trustee of), [1997] A.J. No. 462 (Q.B.), folld. [para. 64].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 73].

Moco Resources Ltd. et al. v. Unocal Canada Resources et al. (1997), 204 A.R. 246 (Q.B.), refd to. [para. 92].

Zickefoose v. Barotto Sports Ltd. et al. (1992), 131 A.R. 292; 25 W.A.C. 292 (C.A.), refd to. [para. 108].

Vector Energy Inc. v. Canadian Pioneer Energy Inc. et al. (1996), 185 A.R. 214; 39 Alta. L.R.(3d) 248 (Q.B. Master), refd to. [para. 110].

Federal Sugar Refining Co. v. United States Sugar Equalisation Board (1920), 268 F. 575 (S.D.N.Y.), dist. [para. 119].

Ernst & Young v. Stuart et al., [1997] 5 W.W.R. 253; 88 B.C.A.C. 182; 144 W.A.C. 182 (C.A.), dist. [para. 121].

Oceanaire Investments Ltd. v. Redman, [1988] B.C.J. No. 2071 (S.C.), dist. [para. 124].

YBM Magnex International Inc. (Receivership), Re (2000), 271 A.R. 123; 234 W.A.C. 123 (C.A.), refd to. [para. 126].

McMurray Homes Ltd. v. Fort McMurray (New Town), [1976] 5 W.W.R. 442 (Alta. C.A.), refd to. [para. 126].

Manville Canada Inc. v. Montreal Trust Co. of Canada et al. (1993), 142 A.R. 37 (Q.B.), refd to. [para. 126].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204 (C.A.), refd to. [para. 128].

Toll v. Canadian Pacific Railway (1908), 1 Alta. L.R. 318 (C.A.), refd to. [para. 131].

Algoma Central Railway v. Fraser (Herb) and Associates Ltd. et al. (1988), 31 O.A.C. 287; 36 C.P.C.(2d) 8 (Div. Ct.), refd to. [para. 131].

Authors and Works Noticed:

Goff, Robert, and Jones, Gareth, The Law of Restitution (5th Ed. 1998), pp. 784, 785 [para. 119].

Rainaldi, Linda D., Remedies in Tort (1987) (Looseleaf), vol. 3, ch. 24, paras. 36.1, 38, 39 [para. 73].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 2.33 [para. 30]; 6.308 [para. 131].

Counsel:

Robert A. Rakochey and J.J. Marshall, Q.C., for Murphy Oil Company Ltd., Murphy Canada Exploration Co. and Harvey Doerr;

Raymond A. Coad, Q.C., and J.J. Patterson, for the defendants;

David J. Cichy and K.R. Anderson, for Apache Canada Ltd. and Floyd Price;

Donald W. Dear, for Ricks Nova Scotia Co.

These applications were heard on March 21, 2002, by McMahon, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on April 26, 2002.