The Appellant owned freehold and leasehold mineral rights in coal resources in Alberta and claimed that a series of ministerial decisions resulted in a constructive taking of its interests. The Appellant served Notices of Appointment to question the former Minister of Energy and former Minister of Environment and Parks to attend for Questioning. The Respondents applied pursuant to Rule 5.19 to set aside the Notices of Appointment, and the Appellants subsequently cross-applied under Rules 5.17, 5.21, and 6.38 for an Order compelling the former Ministers to attend for Questioning (the “Questioning Application”).

At the Questioning Application, the Case Management Judge noted that that the test to determine whether a Minister or former Minister should be ordered to attend Questioning was set out in Leeds v Alberta (Environment), 1989 ABCA 208 (the “Leeds Test”). The Leeds Test requires the Applicant to establish that special circumstances exist and that the Minister or former Minister is the person informed to answer the questions to be posed. The Case Management Judge concluded that the Appellants had failed to demonstrate a special circumstance in relation to former Minister Savage and that there was no indication that former Minster Nixon played a meaningful role in the ministerial decisions.

On Appeal, the Court began by noting that the Leeds Test was formulated in the public interest, only allowing for Questioning that is relevant and material to the specific allegations in the litigation pursuant to Rules 5.2 and 5.25. The Court held that the Case Management Judge erred in finding that the Leeds Test had not been met for former Minister Savage as she had made the decisions, orders, and directions alleged to have resulted in constructive taking. There was a special relationship between her role, the work she did and the issues in the litigation. However, with respect to former Minister Nixon, the Case Management Judge did not err. As such, the Appeal was allowed in part and former Minister Savage was ordered to attend Questioning.