ATTILA DOGAN CONSTRUCTION v AMEC AMERICAS LIMITED, 2011 ABQB 794
1.2: Purpose and intention of these rules
1.4: Procedural orders
4.14: Authority of case management judge
5.6: Form and contents of affidavit of records
5.8: Records for which there is an objection to produce
The Defendant, AMEC Americas Limited (“AMEC”), applied for direction and assistance in regards to approximately 25,000 records it claimed were privileged. As well, AMEC applied to require the Plaintiff, Attila Dogan Construction and Installation Co. Inc. (“AD”) to pay for the translation of approximately 20,000 to 25,000 records produced by AD in the Turkish language. AD cross-applied for an Order compelling AMEC to provide a detailed description of the records over which AMEC claimed privilege, and further production of other records.
AD argued that Rule 5.8 sets out only the minimum requirements for listing privileged records, and that it would be inconsistent with the Foundational Rules to prohibit a more detailed description. AD argued further that Rules 1.4 and 4.14 allow the Court to fashion a method of detailing the alleged privileged documents that would allow the Parties to narrow which documents should be challenged. The Court disagreed and held that Dorchak v Krupka (1997), 196 AR 81 (ABCA) applies to the new Rules. The Court held “[t]here is nothing in Rule 5.8 that would suggest that privileged documents should be identified in a manner that would allow the opposing party to assess the claim of privilege.”
The Court held that it was reasonable for AMEC to translate the foreign language documents as AD had already deemed the documents to be relevant and material. Wittmann C.J. reasoned that as Calgary counsel for AD could not read in Turkish, counsel must have already translated the documents to be in compliance with Rule 5.6(1)(b). In furtherance of the purpose of Rule 1.2, AD could forward the translated records to AMEC.
The Court also ordered that a previous Security for Costs Order against AD would be increased to reflect the amount of AMEC’s disbursement for potential translation of the documents. If AD forwarded the translated documents, and if no issues arose regarding the accuracy of the translation, then AD could avoid increased Security for Costs and there would be no duplication of translation efforts and costs.View CanLII Details