United Food and Commercial Workers Union Local 880 - Retail Food Employers Joint Pension Fund v. Simard et al.,

• Judge: Wittmann
• Neutral Citation: 2012 ABQB 615
• Subject Matter: PRACTICE
• Citation: 2012 ABQB 615,(2012), 550 A.R. 89 (QB),550 AR 89,(2012), 550 AR 89 (QB),550 A.R. 89
• Date: 24 September 2012
• Court: Court of Queen's Bench of Alberta (Canada)

UFCWU v. Simard (2012), 550 A.R. 89 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. oc.090

In The Matter Of A Letter Of Request From The United States District Court, Western District Of Oklahoma To Obtain Deposition Testimony And Documentary Evidence

United Food and Commercial Workers Union Local 880 - Retail Food Employers Joint Pension Fund (applicant) v. Timothy Simard, James Wallace and National Bank of Canada Inc. (respondents)

(1201 11061; 2012 ABQB 615)

Indexed As: United Food and Commercial Workers Union Local 880 - Retail Food Employers Joint Pension Fund v. Simard et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, C.J.Q.B.

October 4, 2012.

Summary:

The applicant was lead plaintiff in a class action against Chesapeake Energy Corp. and its officers and directors with respect to alleged violations of the United States Federal Securities Laws. A letter of request (LOR) for International Judicial Assistance from the United States District Court for the Western District of Oklahoma was sent to the Court of Queen's Bench of Alberta, requesting that the court direct and order the respondent, Simard, to appear to answer questions upon oral examination and for the National Bank of Canada Inc. to produce certain documents.

The Alberta Court of Queen's Bench held that a limited response to the LOR was appropriate. Most, if not all, of the factors weighed in favour of granting the LOR. The scope of the examination was another matter. The court's order established the limitations to the examination.

Practice - Topic 3741.2

Evidence - Letters rogatory (or letters of request) - When granted - The applicant was lead plaintiff in a class action against Chesapeake Energy Corp. and its officers and directors with respect to alleged violations of the United States Federal Securities Laws - A letter of request (LOR) for International Judicial Assistance from the United States District Court for the Western District of Oklahoma was sent to the Court of Queen's Bench of Alberta, requesting that the court direct and order the respondent, Simard, to appear to answer questions upon oral examination and for the National Bank of Canada Inc. to produce certain documents - The document at issue was Appendix 1, dated August 20, 2008, to a National Bank Financial Daily Bulletin (Report) authored by Simard and Wallace on behalf of National Bank Financial - The applicant sought disclosure of the report and all documents used or reviewed by Simard in the preparation of Appendix 1 - Further, the oral examination was to be limited to Simard's educational background, training and work experience up to and including his work with National Bank Energy Derivatives Group on August 20, 2008; the circumstances under which Appendix 1 was written and whether it was written in the ordinary course of Simard's business; why it was written; the information and documents used; the basis for the statements made including questions necessary to clarify the terms used and confirmation that Simard reasonably believed the statements in the Report were accurate at the time it was made - The Alberta Court of Queen's Bench held that a limited response to the LOR was appropriate - Most, if not all, of the factors weighed in favour of granting the LOR - The evidence sought was relevant and necessary for trial - There was nothing that indicated that there was other evidence of "the same value" available - Finally, there was nothing that would contravene public policy simply on the basis that Simard and the National Bank were "strangers to the litigation" - The scope of the examination was another matter - The court's order established the limitations to the examination.

Cases Noticed:

AstraZeneca LP et al. v. Wolman, [2009] O.T.C. Uned. U01 (S.C.), refd to. [para. 19].

Connecticut Retirement Plans and Trust Funds v. Buchan et al. (2007), 225 O.A.C. 106 (C.A.), refd to. [para. 19].

CSI Wireless LLC v. Harris Canada Inc. et al. (2003), 342 A.R. 57 (Q.B.), refd to. [para. 19].

District Court of the United States, Middle District of Florida v. Royal American Shows Inc., [1982] 1 S.C.R. 414; 41 N.R. 181; 36 A.R. 361, refd to. [para. 19].

Lafarge Canada Inc. v. Khan, [2008] O.T.C. Uned. 399 (S.C.), refd to. [para. 19].

Trustees of the Ontario Public Service Employees Union Pension Trust Fund v. Clark et al., [2005] O.T.C. 1156 (S.C.), affd. (2006), 212 O.A.C. 286 (C.A.), refd to. [para. 19].

Presbyterian Church of Sudan et al. v. Talisman Energy Inc. et al. (2005), 385 A.R. 274 (Q.B.), refd to. [para. 19].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 19].

Richardson, Patrick, Westbrook & Brickman LLC v. Shell Canada Ltd. (2012), 535 A.R. 200 (Q.B.), refd to. [para. 19].

Scienton Technologies Inc. et al. v. Canadian Imperial Bank of Commerce et al., [2009] O.T.C. Uned. D37; 2009 CarswellOnt 3267 (S.C.), refd to. [para. 19].

Wirth Ltd. v. Acadia Pipe & Supply Corp. et al. (1991), 113 A.R. 298 (Q.B.), refd to. [para. 43].

Authors and Works Noticed:

Rapp, Geoffrey Christopher, Proving Markets Inefficient: The Variability of Federal Court Decisions on Market Efficiency in Cammer v. Bloom and Its Progeny (2002), 10 U. Miami Bus.L.Rev. 303, generally [para. 26].

Counsel:

B. McPhadden, I. Erez and J. Caputo, for the applicant;

D. Brian Foster, Q.C., for the respondents.

This application was heard on September 24, 2012, by Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on October 4, 2012.