Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, (2010) 358 Sask.R. 283 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 27, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 358 Sask.R. 283 (QB);2010 SKQB 307

Potash Corp. v. Mosaic Potash (2010), 358 Sask.R. 283 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. SE.013

Potash Corporation of Saskatchewan Inc. (plaintiff/defendant by counterclaim) v. Mosaic Potash Esterhazy Limited Partnership (defendant/plaintiff by counterclaim)

(2009 Q.B.G. No. 666; 2010 SKQB 307)

Indexed As: Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

August 27, 2010.

Summary:

The parties were engaged in a dispute regarding a mining agreement. In June 2010, the plaintiff moved for an order compelling the defendant to (1) produce certain documents over which the defendant had asserted claims of privilege and (2) produce all documents that related to the existence, scope, causes and impacts of various inflows in the mine from December 1985 to the present. In response, the defendant served and filed four affidavits. Two of the affiants were Tough and Gerhardt. Tough's affidavit related to claims of privilege regarding certain of the documents sought and Gerhardt's affidavit related to the defendant's position that the documents sought were not relevant. The plaintiff applied for leave to cross-examine Tough and Gerhardt and for an order compelling the defendant to produce certain documents that formed the basis for or were referred to in the affidavits.

The Saskatchewan Court of Queen's Bench allowed the application in part.

Editor's Note: For related decisions regarding this action, see (2009), 347 Sask.R. 254, 368 Sask.R. 233 and (2010), 353 Sask.R. 217.

Evidence - Topic 4714

Witnesses - Examination - Cross-examination - Of affiants - [See both Practice - Topic 3687 ].

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination (incl. transcripts) - The parties were engaged in a dispute regarding a mining agreement - In June 2010, the plaintiff moved for an order (the production motion) compelling the defendant to (1) produce certain documents over which the defendant had asserted claims of privilege and (2) produce all documents that related to the existence, scope, causes and impacts of various inflows in the mine from December 1985 to the present - In response, the defendant served and filed four affidavits - The plaintiff applied for leave to cross-examine one of the affiants, Tough, as to the claim of privilege - Tough had been counsel for the defendant's predecessor in an action that the predecessor brought against its insurers concerning inflows at the mine in 1985 and 1986 - That action was settled in 1993 - Tough's affidavit related to factual issues relevant to the defendant's claim of privilege regarding documents that came into its counsel's possession during the settled action - The plaintiff claimed that those documents were relevant to the current action and that its cross-examination of Tough would assist the court in determining the nature of the privilege, if any, that attached to the documents - The Saskatchewan Court of Queen's Bench allowed the application - The cross-examination would assist in determining whether solicitor-client privilege had been appropriately claimed regarding communications with consultants that had been engaged in the settled action - The plaintiff had also suggested that there were inconsistencies between Tough's affidavit and other evidence that the plaintiff intended to put forward on the production motion - The court also granted leave to cross-examine Tough on those alleged inconsistencies - See paragraphs 8 to 14.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination (incl. transcripts) - The parties were engaged in a dispute regarding a mining agreement - In June 2010, the plaintiff moved for an order (the production motion) compelling the defendant to (1) produce certain documents over which the defendant had asserted claims of privilege and (2) produce all documents that related to the existence, scope, causes and impacts of various inflows in the mine from December 1985 to the present - In response, the defendant served and filed four affidavits - The plaintiff applied for leave to cross-examine one of the affiants, Gerhardt, as to the existence of documents relating to the 1985 and subsequent inflows at the mine - In the affidavit, Gerhardt made a statement that, with one possible exception, none of the inflows sterilized any potash reserves - The defendant intended to rely on that statement for its position that none of the documents sought in the production motion were relevant to the issues in the action - The Saskatchewan Court of Queen's Bench allowed the plaintiff's application - If the defendant intended to rely on the statement, the plaintiff had to be allowed to test the assertion by cross-examination - See paragraphs 15 to 19.

Practice - Topic 4571.3

Discovery - What documents must be produced - Documents referred to in affidavit - The parties were engaged in a dispute regarding a mining agreement - In June 2010, the plaintiff moved for an order (the production motion) compelling the defendant to (1) produce certain documents over which the defendant had asserted claims of privilege and (2) produce all documents that related to the existence, scope, causes and impacts of various inflows in the mine from December 1985 to the present - In response, the defendant served and filed four affidavits - Two of the affiants were Tough and Gerhardt - Tough's affidavit related to claims of privilege regarding certain of the documents sought and Gerhardt's affidavit related to the defendant's position that the documents sought were not relevant - The plaintiff applied for leave to cross-examine Tough and Gerhardt and for an order compelling the defendant to produce certain documents that formed the basis for or were referred to in the affidavits - The Saskatchewan Court of Queen's Bench allowed the application in part - As to Gerhardt's cross-examination, the court refused the order sought because the documents sought were essentially the same as those sought in the production motion - A production order would in effect grant the relief sought in the production motion that had not yet been heard - However, the court was prepared to grant an order for certain retainer agreements referred to in Tough's affidavit but on terms that allowed for redaction of privileged information until the claim of privilege could be determined - See paragraphs 20 to 29.

Cases Noticed:

Wallace v. Canadian Pacific Railway et al. (2009), 338 Sask.R. 174; 2009 SKQB 178, refd to. [para. 6].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 180 D.L.R.(4th) 241; 45 O.R.(3d) 321 (C.A.), refd to. [para. 11].

Stamper v. Finnigan et al. (1983), 45 N.B.R.(2d) 335; 118 A.P.R. 335 (T.D.), dist. [para. 12].

Popowich v. Saskatchewan et al. (1996), 144 Sask.R. 166; 124 W.A.C. 166 (C.A.), refd to. [para. 26].

Aquino et al. v. First Choice Capital Fund Ltd. et al. (2000), 200 Sask.R. 108; 2000 SKQB 403, refd to. [para. 26].

First Choice Capital Fund Ltd. v. First Canadian Capital Corp. - see Aquino et al. v. First Choice Capital Fund Ltd. et al.

DPM Securities Inc. et al. v. American Home Assurance Co. (2006), 276 Sask.R. 134; 2006 SKQB 62, refd to. [para. 26].

Schroeder et al. v. DJO Canada Inc. et al. (2009), 334 Sask.R. 258; 2009 SKQB 169, refd to. [para. 26].

Lavoie v. Hulowski (2005), 265 Sask.R. 181; 2005 SKQB 26, refd to. [para. 27].

Authors and Works Noticed:

Williston, W.B., and Rolls, R.J., The Law of Civil Procedure (1970), vol. 2, p. 907 [para. 12].

Counsel:

Gordon J. Kuski, Q.C., and Amanda M. Quayle, for PCS;

Douglas C. Hodson, Q.C., and David Haigh, Q.C., for Mosaic.

This application was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on August 27, 2010.