CNOOC Petroleum North America ULC (“CNOOC”) filed a claim against several defendants, including Sunstone Projects Ltd and Wood Group Canada, Inc. (collectively, the “Wood Group”) and ITP SA (“ITP”). Two former defendants, Omnisens SA (“Omnisens”) and Surerus Pipeline Inc (“Surerus”) settled with CNOOC pursuant to Pierringer Agreements. Wood Group applied under Rule 5.18 for an Order directing that any evidence from the Questioning of Surerus and Omnisens be treated as if it were the evidence of CNOOC. In this Decision, Nixon A.C.J. framed the issue as whether the Court should grant the Wood Group Application to question Omnisens and Surerus under Rule 5.18.

Wood Group claimed that Surerus and Omnisens were “service providers”, akin to employees of CNOOC, and the Order sought was necessary for fairness and to ensure access to relevant and material evidence. Wood Group pointed out that absent the Pierringer Agreements, Wood Group would have had the right to question Surerus and Omnisens and to read in that evidence at Trial.

The Court acknowledged that Rule 5.18 was added following Rule 5.17 to recognize the common law gloss that arose from the old wording of the Rules referring to persons who “were employed by the other party” not just “employees.” Associate Chief Justice Nixon held that where it is shown that an individual has provided services to the corporation in a manner similar to traditional employment, they must still meet the high bar test for Rule 5.18, which requires demonstrating that “’a party cannot obtain relevant and material information’ from the corporate representative.”

The Court agreed with CNOOC that all elements of Rule 5.18 must be met. Nixon A.C.J. found that Wood Group failed to meet the elements of Rule 5.18, holding that Surerus and Omnisens did not have a relationship with CNOOC akin to a “near employee” and that the services they provided were not analogous to traditional employment relationships. The Court also found that Wood Group did not show that it was impossible to obtain the relevant and material information from CNOOC. Dissatisfaction of the record production is not enough on its own. Nixon A.C.J. emphasized that Rule 5.18 is a narrow exception not intended to displace the usual methods of record production or Questioning.

Associate Chief Justice Nixon further noted that pointing to potential prejudice or unfairness alone is not enough to permit the use of Rule 5.18, and that nevertheless, the Pierringer Agreements contained requirements to cooperate with CNOOC in providing requested records and to assist with Questioning. The Court, consequently, did not grant the Wood Group Application to question Omnisens and Surerus under Rule 5.18. The Application was dismissed.