Trimay Wear Plate Ltd. v. Way et al., 2008 ABQB 601

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 20, 2008
• Citations: 2008 ABQB 601;(2008), 456 A.R. 371 (QB)

Trimay Wear Plate Ltd. v. Way (2008), 456 A.R. 371 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.034

Trimay Wear Plate Ltd. (plaintiff) v. Keith Way and Premetalco Inc., carrying on business under the firm name and style of Wilkinson Steel and Metals (defendants)

(9703 22138; 2008 ABQB 601)

Indexed As: Trimay Wear Plate Ltd. v. Way et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

September 30, 2008.

Summary:

Way left Trimay Wear Plate Ltd.'s employ in 1996 and immediately went to work for Premetalco Inc. Trimay brought an action, alleging that Way and Premetalco used Trimay's confidential and proprietary information to compete with it in the wear plate business. Trimay also alleged that Way improperly solicited clients and prospective clients of Trimay. The defendants applied for an order under rule 209 of the Alberta Rules of Court directing two non-party corporations to produce records they claimed were relevant to the action.

The Alberta Court of Queen's Bench allowed the application in part. The court ordered the two non-party corporations to produce two specific documents.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - Way left Trimay Wear Plate Ltd.'s employ in 1996 and immediately went to work for Premetalco Inc. - Trimay brought an action, alleging that Way and Premetalco used Trimay's confidential and proprietary information to compete with it in the wear plate business - Trimay also alleged that Way improperly solicited clients and prospective clients of Trimay - The defendants applied for an order under rule 209 of the Alberta Rules of Court directing two non-party corporations (735458 Alberta Inc. and Alberta Industrial Metals Ltd.) to produce records they claimed were relevant to the action - Both corporations were related to Trimay - The records sought to be produced from 735458 and Alberta Industrial were described as: "(a) documents relating to the alleged 'proprietary' nature of Trimay's technology and processes; and (b) documents relating to the damages claimed by Trimay" - The Alberta Court of Queen's Bench allowed the application in part - The court ordered 735458 and Alberta Industrial to produce two specific documents (the purchase agreement between 735458 and the former owner of Trimay's shares and a lease agreement between Trimay and 735458 of a welding machine) - The fact that entities were associated with a party was not a sufficient basis to require production - The defendants had not provided the degree of specificity required to establish that the third parties had any relevant and material records, other than with respect to the purchase agreement and the lease - Otherwise, the records sought were of tertiary relevance to the issues - Records relating to corroboration of information already provided, or only testing credibility, might be relevant, but were not generally material.

Practice - Topic 4612

Discovery - Production of documents by nonparties - Related companies - [See Practice - Topic 4604 ].

Cases Noticed:

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1989), 98 A.R. 374 (Q.B.), affd. (1990), 108 A.R. 161; 74 Alta. L.R.(2d) 262 (C.A.), refd to. [para. 11].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1988), 94 A.R. 17; 63 Alta. L.R.(2d) 189 (Q.B.), refd to. [para. 11].

Koenen v. Koenen (2001), 277 A.R. 265; 242 W.A.C. 265; 2001 ABCA 46, refd to. [para. 15].

Berube et al. v. Wingrowich et al. (2005), 382 A.R. 189; 2005 ABQB 367, refd to. [para. 15].

Wasylyshen v. Canadian Broadcasting Corp. et al. (2005), 385 A.R. 343 (Q.B.), refd to. [para. 15].

Metropolitan Trust Co. of Canada v. 337807 Alberta Ltd. et al., [1996] A.J. No. 291 (C.A.), refd to. [para. 15].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook, (2005), vol. 1, pp. 215, 216 [para. 15].

Counsel:

Donald J. Wilson (Davis LLP), for the plaintiff;

Robert P. James (Parlee McLaws), for the defendants;

Louis Belzil (Bennett Jones), for the third parties.

This application was heard on May 20, 2008, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on September 30, 2008.