The underlying action involved a pipeline failure. The Plaintiff, CNOOC Petroleum North America ULC brought an action against several parties (the “Defendants”). The Application before the Court of King’s Bench concerned refused undertakings.

The Associate Chief Justice reviewed the principles of disclosure under Rules 5.1, 5.2 and 5.25, emphasizing the need for relevance and materiality in discovery, with the pleadings acting as the starting point for determining relevance and materiality, along with the context and nature of the claim. The Court noted that discovery should be proportional and not unnecessarily burdensome, with a focus on narrowing issues and facilitating resolution. It would not be in the interests of the judicial system to permit endless and unlimited pre-Trial discovery.

In applying the law to the application, the Court found that Undertakings 21 and 22 were properly refused because Undertaking 21 referred to an undertaking (Undertaking 8) that was refused due to a lack of clarity over two years previously without follow-up and Undertaking 22 was a rewording of the same refused undertaking.

In respect of Undertaking 24, which was a request to advise which emails would have been in some of the Defendants’ possession and control but not produced in the action was deemed improper as the emails referred to were not found within the data base of the Defendant questioning group. The Court further noted that the records were not properly in evidence before the Court for this application. The Court emphasized that parties ad a positive duty to update their Affidavits of Records without requiring specific direction from the Court.

The Court found Undertaking 26, 29 and 30 were proper. Undertaking 26 was relevant and material as it pertained to the qualifications and experience of a key individual involved in the pipeline project. Undertaking 29 was relevant and material as it was relevant to understanding the time and effort allocated by a key individual to the pipeline project. The information was material to the Plaintiff's claim regarding the Defendants' failure to provide qualified personnel. The Court determined that Undertaking 30 was reasonable and proportional, given evidence suggesting that the individual in question may still have access to relevant email records. The Court directed that the individual attempt to access the account and produce any relevant records, or confirm if access was no longer possible.