Murphy Oil Co. et al. v. Predator Corp. et al., 2002 ABQB 629

• Judge: McMahon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 29, 2002
• Citations: 2002 ABQB 629;(2002), 319 A.R. 328 (QB)

Murphy Oil Co. v. Predator Corp. (2002), 319 A.R. 328 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JL.054

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 629)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

July 8, 2002.

Summary:

The plaintiffs applied to try a certain issue (the proposed issue) separately from the remainder of the claim and counterclaim, stay the remainder of the claim and counterclaim until the proposed issue had been finally determined (or, in the alternative, staying certain paragraphs of the counterclaim), postpone discovery and production of documents relevant to all stayed proceedings until the proposed issue had been finally determined (or, in the further alternative, directing the proposed issue be tried separately, with all other issues in the claim and counterclaim governed by a separate case management timetable and a separate case management order).

The Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 1836

Pleadings - Counterclaim and set-off - Counterclaim - Severability - Circumstances when counterclaim may be severed from original claim - Rule 95 provided that a counterclaim may be tried separately where it "cannot be conveniently disposed of in the same action" - Alternatively, the court had discretion to exclude the counterclaim, or to make any other "expedient" order - The Alberta Court of Queen's Bench discussed the test under rule 95 - The court stated that as all actions with counterclaims would inevitably take longer than if there were no counterclaim, a delay in pursuing the original claim was not a proper ground for severance - See paragraphs 13 to 16.

Practice - Topic 1836

Pleadings - Counterclaim and set-off - Counterclaim - Severability - Circumstances when counterclaim may be severed from original claim - Rule 95 provided that a counterclaim may be tried separately where it "cannot be conveniently disposed of in the same action" - Alternatively, the court had discretion to exclude the counterclaim, or to make any other "expedient" order - The Alberta Court of Queen's Bench held that rule 95 did not apply where plaintiffs were not seeking to have only the counterclaim tried separately, but also two paragraphs of the claim itself - See paragraph 14.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The plaintiffs applied to try a certain issue (the proposed issue) separately from the remainder of the claim and counterclaim - The Alberta Court of Queen's Bench stated that, in general, trials were not to be split because of the inherent dangers in doing so, some of which did not become evident until after the trial, when it was too late - The court referred to factors to be considered in determining whether to split a trial - The court stated that it was not sufficient for the proposed issue to be simpler than the remaining issues; the proposed issue had to have at least some inherent simplicity - See paragraphs 17 to 50.

Cases Noticed:

Bank of British Columbia v. Affkor Group (1982), 43 A.R. 14; 21 Alta. L.R.(2d) 377 (Q.B. Master), refd to. [para. 15].

De Moissac v. Star, [1984] A.J. No. 189 (Q.B. Master), refd to. [para. 15].

Wheaton v. Day, [1986] A.J. No. 1344 (Q.B. Master), refd to, [para. 15].

Toronto Dominion Bank v. Kilarski, [1989] A.J. No. 213 (Q.B. Master), refd to. [para. 16].

Tanguay v. Vincent, [1999] A.R. Uned. 510; 75 Alta. L.R.(3d) 90 (Q.B.), folld. [para. 18].

Gienow Building Products Ltd. v. Tremco Inc. et al. (2000), 255 A.R. 273; 220 W.A.C. 273 (C.A.), refd to. [para. 20].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27; 79 Alta.L.R.(2d) 1 (C.A.), refd to. [para. 23].

Coenen v. Payne and another; Payne v. Coenen, [1974] 2 All E.R. 1109 (C.A.), refd to. [para. 25].

Ashmore et al. v. Corporation of Lloyd's, [1992] 2 All E.R. 486; 145 N.R. 344 (H.L.), refd to. [para. 25].

Belmont Hotel Ltd. et al. v. Atlantic Speedy Propane Ltd. et al. (1982), 41 N.B.R.(2d) 403; 107 A.P.R. 403 (T.D.), refd to. [para. 26].

Karlsen Shipping Co. v. Sefel J. & Associates Ltd. (1978), 9 A.R. 341; 7 Alta. L.R.(2d) 13 (C.A.), refd to. [para. 27].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1994), 164 A.R. 76 (Q.B.), refd to. [para. 27].

Lim v. Home Insurance Co. (1995), 168 A.R. 308; 28 Alta. L.R.(3d) 420 (Q.B.), varied (1996), 43 Alta. L.R.(3d) 301 (C.A.), refd to. [para. 39].

Royal Bank v. Kilmer van Nostrand Co. (1994), 29 C.P.C.(3d) 191 (Ont. Gen. Div.), refd to. [para. 46].

Statutes Noticed:

Rules of Court (Alta.), rule 221(1) [para. 17].

Authors and Works Noticed:

Alberta Court of Queen's Bench Practice Notes, Practice Note 7 (Very Long Trial Practice Note), para. 33 [paras. 19, 28].

Stockwood, D., Long Trials: A Modest Proposal (1999), 18:3 Advocates' Soc. J. 2, generally [para. 24].

Counsel:

Roger F. Smith and Robert A. Rakochey, for Murphy Oil Co., Murphy Canada Exploration Co. and Harvey Doerr;

Raymond A. Coad, Q.C., and Jerry J. Patterson, for The Predator Corp., Blair Longdo, Robert V. Shields and Gerry O'Reilly;

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

Andrew G. Kay, for Ricks Nova Scotia Co.

This application was heard on May 29, 2002, by McMahon, J., of the Alberta Court of Queen's Bench, Judicial Centre of Calgary, who delivered the following decision on July 8, 2002.