Master Prowse

7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Defendant, Occidental Petroleum Corporation (“Occidental”), brought an Application for Summary Dismissal and a determination that Occidental was entitled to immunity from the Plaintiff, Canadian Natural Resources (“CNRL”)’s Claim pursuant to the Limitations Act, RSA 2000, c L12 (the “Act”).

For a number of years CNRL was searching for the successors-in-interest to two separate 16% interests in an oil and gas joint venture so that CNRL could bill each of the successors for 16% of the remediation costs which were being incurred by CNRL as operator (the “Remediation Costs”). One 16% interest was initially owned by McWood Corporation (“McWood”) and ultimately, over 50 years and various parties, transferred to Occidental (the “McWood Interest”). CNRL finally located and commenced the underlying Action against Occidental in 2014 as the successor-in-interest to the McWood Interest.

Occidental argued that CNRL had information that would have quickly identified Occidental’s role as successor-in-interest to the McWood Interest back in March of 2009 and, had CNRL acted with reasonable diligence, it would have been able to commence its Action then. CNRL objected to Occidental’s assertion and argued that Occidental’s deponent, who provided evidence as to the events in question, did not have personal knowledge of the events provided for in the sworn Affidavit (the “OC Affidavit”). CNRL relied on Rule 13.18(3) which requires that an Affidavit is used in support of an Application that may dispose of all or part of a claim must be sworn on the basis of the personal knowledge of the person swearing the Affidavit.

Master Prowse reviewed the history between the parties and the requirements of Rule 13.18 pertaining to the necessary form of Affidavit evidence. Master Prowse noted that while Occidental’s deponent was not personally involved, given that a number of the relevant events occurred over 50 years ago, the facts in issue in the underlying Action were confirmed by the OC Affidavit and on cross-examination of CNRL’s deponent. As such Master Prowse found CNRL’s objection was without merit. Master Prowse concluded that CNRL’s claim against Occidental was summarily dismissed with respect to any monthly invoices for the remediation costs issued before the limitation period had expired.

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