The Plaintiff, ATCO, filed a claim against NGC Compression Solutions Ltd. (“NGC”) and Energy Dynamics Ltd. (“EnDyn”) seeking damages for negligent design, manufacture and assembly of pistons that malfunctioned in one of the engines used to power ATCO’s storage compressors in July 2014 (“2014 Incident”). NGC and EnDyn issued notices to co-Defendants to each other pursuant to Rule 3.43. Prior to Trial, ATCO settled its claim against NGC. For the Trial, the parties agreed on exhibits (“Joint Exhibits”) and agreed on the terms of the use of the Joint Exhibits, which the Court noted was a useful practice in accordance with Rule 1.2.

At Trial, ATCO sought to rely on evidence of the performance of other EnDyn-manufactured pistons, which was disclosed seven days before Trial (“Late Disclosure”). EnDyn, relying on Rule 5.16, objected to admission of the Late Disclosure. The Court noted that the expectation inherent in Rule 5.10 is that relevant and material records should be located and disclosed prior to a Trial being scheduled. Rules 5.16 and 5.10 were designed to avoid Trial by ambush and the associated unfairness. The Court found that ATCO had not shown sufficient reason for the failure to disclose at an earlier time, and that ATCO had not provided any evidence about why it did not search for relevant and material records for its Affidavit of Records pursuant to Rule 5.6. As such, ATCO was not permitted to rely on the Late Disclosure.

Following the Trial, EnDyn, pursuant to Rule 9.13, applied to re-open the Trial to call a witness to provide evidence on an adhesive to prevent loosening of the plugs in the pistons. ATCO opposed the Application, arguing that Rule 9.13 did not apply because there was not any “judgment or order or reasons for it” to change or modify and, even if Rule 9.13 applied, there was no good reason to re-open the Trial. The Court rejected ATCO’s argument that an Application to re-open could not be made prior to a Judgment or Order being granted, holding that the considerations under Rule 9.13 still apply, either directly or by analogy under Rule 1.7(2). However, the Court agreed with ATCO that there was no good reason to re-open the Trial.

Another issue that arose was whether emails produced by NGC that contained photos were admissible as the author of the emails did not testify. The Court noted that Rule 5.15 provides that a party who makes an Affidavit of Records and a party on whom the Affidavit of Records is served are both presumed to admit that the record is authentic, meaning that the document is a true copy of the original and is not a forgery. As such, the Court held that the photos were admissible to prove the authenticity of the photos.

ATCO did not use an independent expert at Trial, instead relying on Andrew Hockett (“Hockett”), a maintenance manager who conducted an inspection. The Court considered Hockett to be a “witness with expertise”. The Court noted that while ATCO did not provide an expert report in Form 24 as required for an independent expert under Rule 5.34, ATCO did provide significant advance notice of Hockett’s opinion, which was sufficient.

Similar to ATCO, EnDyn relied on Dwayne Sleight (“Sleight”) as a witness with expertise. Sleight had prepared a failure inspection report (“EnDyn Report”). ATCO objected to the use of the EnDyn report due to its late disclosure, including based on Rule 5.16. ATCO’s argument was rejected, with the Court finding that the EnDyn report had been referenced or included in another report and was also provided in a Supplemental Affidavit of Records before Trial.

In the result, the Court found that ATCO had proven that several pistons were defective and negligently manufactured but had not proven that those pistons caused the 2014 Incident. ATCO, accordingly, was only awarded damages for the cost of replacing the pistons.