SaskPower International Inc. et al. v. UMA/B&V Ltd. et al., 2008 SKQB 294

• Judge: Ball, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 23, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKQB 294;(2008), 319 Sask.R. 144 (QB)

SaskPower v. UMA/B&V Ltd. (2008), 319 Sask.R. 144 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JL.063

SaskPower International Inc. and ATCO Power Canada Ltd. (plaintiffs) v. UMA/B&V Ltd., UMA Group Ltd. and Black & Veatch Holding Company (defendants)

Balzer's Canada Inc. (plaintiff) v. ATCO Power Canada Ltd., Cory Cogeneration Funding Corporation, Potash Corporation of Saskatchewan Inc. and SaskPower International Inc. (defendants) and ATCO Power Canada Ltd. and SaskPower International Inc. (defendants/third party claimants) and UMA/B&V Ltd., UMA Group Ltd. and Black & Veatch Holding Company (third parties)

(2004 Q.B.G. No. 1473; 2005 Q.B.G. No. 865; 2008 SKQB 294)

Indexed As: SaskPower International Inc. et al. v. UMA/B&V Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

July 23, 2008.

Summary:

The plaintiffs (the owners) engaged the defendants (the engineers) to provide engineering services connected with the construction of a co-generation facility adjacent to a potash mine. Difficulties during construction led to delays and cost over-runs. Two contractors advanced claims against the owners for additional compensation. The owners retained counsel and began preparing documentation to defend the claims. The owners formed the opinion that responsibility for the claims rested with the engineers. The owners commenced an action against the engineers. The contractors' claims were settled with the owners. The owners' action against the engineers proceeded. The owners claimed litigation privilege over 22 binders of documents. The engineers applied for an order determining whether the owners were entitled to maintain their claim of litigation privilege.

The Saskatchewan Court of Queen's Bench held that, with one exception, the owners remained entitled to maintain their claim of litigation privilege over the documents.

Editor's note: there are numerous reported decisions involving these parties.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - The plaintiffs (the owners) engaged the defendants (the engineers) to provide engineering services connected with the construction of a co-generation facility adjacent to a potash mine - Difficulties during construction led to delays and cost over-runs - Two contractors advanced claims against the owners for additional compensation - The owners retained counsel and began preparing documentation to defend the claims - Among the documents were memoranda and emails written by Cairns, the project's construction manager - The owners formed the opinion that responsibility for the claims rested with the engineers - The owners commenced an action against the engineers - The contractors' claims were settled with the owners - The owners' action against the engineers proceeded - At issue was the owners' claim of litigation privilege over the documents prepared by Cairns regarding the contractors' claims - The engineers asserted that any litigation privilege that attached to the documents came to an end when the contractors' claims were settled - The Saskatchewan Court of Queen's Bench held that the owners remained entitled to maintain their claim of litigation privilege over the documents despite their settlement of the claims - While litigation privilege was neither absolute nor permanent, it might retain its purpose of creating a "zone of privacy" regarding related pending or apprehended litigation - The claims advanced by the contractors formed a substantial part of the owners' claims against the engineers - The issues were either the same or so closely related as to be inseparable - See paragraphs 34 and 35.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - The plaintiffs (the owners) engaged the defendants (the engineers) to provide engineering services connected with the construction of a co-generation facility adjacent to a potash mine - Difficulties during construction led to delays and cost over-runs - Two contractors advanced claims against the owners for additional compensation - The owners retained counsel and began preparing documentation to defend the claims - The owners formed the opinion that responsibility for the claims rested with the engineers - The owners commenced an action against the engineers - The contractors' claims were settled with the owners - The owners' action against the engineers proceeded - The owners claimed litigation privilege over 22 binders of documents - Three of the documents, spreadsheets that summarized facts, were introduced as evidence - The engineers asserted that by introducing as evidence documents prepared for the purpose of responding to the contractors' claims, the owners had waived privilege over all such documents - The Saskatchewan Court of Queen's Bench held that the owners' introduction into evidence of the three documents did not evince an intention to waive litigation privilege over all documents - The three documents contained information that had been, or could have been, the subject of the engineers' cross-examination of one of the witnesses - With the exception of a document marked D-14, the documents introduced at trial were different in substance from those over which privilege was claimed - While D-14 was not a spreadsheet, its dominant purpose was to summarize facts that were the subject of evidence at trial - There was little difference between it and the documents introduced at trial - The engineers were entitled to rely on D-14 in cross-examination - See paragraphs 36 to 39.

Practice - Topic 4578

Discovery - What documents must be produced - Privileged documents - Documents prepared in contemplation of litigation (litigation privilege or work product privilege) - The plaintiffs (the owners) engaged the defendants (the engineers) to provide engineering services connected with the construction of a co-generation facility adjacent to a potash mine - Difficulties during construction led to delays and cost over-runs - Two contractors advanced claims against the owners for additional compensation - The owners retained counsel and began preparing documentation to defend the claims - Among the documents were memoranda and emails written by Cairns, the project's construction manager - The owners formed the opinion that responsibility for the claims rested with the engineers - The owners commenced an action against the engineers - The contractors' claims were settled with the owners - The owners' action against the engineers proceeded - At issue was the owners' claim of litigation privilege over the documents prepared by Cairns regarding the contractors' claims - The engineers asserted that because in his testimony Cairns had given opinion evidence regarding the work done by the engineers and the contractors' claims, the engineers were entitled to cross-examine Cairns on all of the materials he had reviewed in preparation of his opinions, including his working papers - The Saskatchewan Court of Queen's Bench rejected the argument - The court had already determined that Cairns was a lay witness who could express his opinions without meeting the requirements regarding expert witnesses - The owners were entitled to maintain their claim of privilege over the documents - If the "zone of privacy" created by litigation privilege was lost simply because a lay witness expressed an opinion, litigation privilege would be seriously diminished as a meaningful concept - See paragraphs 40 to 42.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See second Practice - Topic 4578 ].

Cases Noticed:

Bank of Montreal v. 3D Properties Inc. et al. (No. 2) (1993), 111 Sask.R. 63 (Q.B.), refd to. [para. 20].

Hill v. Board of Education of Arcola School Division No. 72 (1999), 180 Sask.R. 256; 205 W.A.C. 256 (C.A.), refd to. [para. 21].

Laxton Holdings Ltd. et al. v. Lloyd's of London, Non-Marine Underwriters et al. (1988), 72 Sask.R. 313 (C.A.), refd to. [para. 21].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 22].

Western Canada Investment Co. v. McDiarmid, [1922] 1 W.W.R. 257; 66 D.L.R. 457 (Sask. C.A.), refd to. [para. 25].

Popowich v. Saskatchewan et al. (1998), 167 Sask.R. 41 (Q.B.), refd to. [para. 26].

S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. et al., [1983] 4 W.W.R. 762 (B.C.S.C.), refd to. [para. 26].

Authors and Works Noticed:

Manes, Ronald D., and Silver, Michael P., Solicitor-Client Privilege in Canadian Law (1993), p. 187 [para. 25].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (2nd Ed. 1999), p. 127 [para. 30].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), vol. 8, p. 636 [para. 27].

Counsel:

Maurice O. Laprairie, Q.C., Deron A. Kuski and Jodi R. Wildeman, for the plaintiffs;

S.B. Hankinson and M.J. Braidwood, for the defendants.

This application was heard by Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on July 23, 2008.