5.1: Purpose of this Part (Disclosure of Information)
5.7: Producible records

Case Summary

The present Applications concerned claims of privilege over certain documents. In the underlying Action, the Plaintiff, CNOOC Petroleum North America ULC (“CNOOC”) issued a Statement of Claim against a number of parties, including Sunstone Projects Ltd. and Wood Group Canada, Inc. (collectively, the “Wood Group”) and ITP SA (“ITP”).

Nixon A.C.J. was asked to determine the following Applications: (1) CNOOC’s Application against ITP to compel answers to certain questions and Undertakings; (2) CNOOC’s Application against Wood Group to compel answers to certain questions and Undertakings, requesting production of certain records and revising their Affidavit of Records; and (3) Wood Group’s Application against CNOOC requesting production of certain records. 

Nixon A.C.J. noted that the purpose of Part 5 of the Rules (and citing Rule 5.1 in particular) is to encourage early disclosure of records, discourage conduct that unnecessarily delays proceedings or increases their Costs, and to facilitate the resolution of issues in dispute. While recognizing the general principle that records that are both material and relevant but protected under a form of privilege do not need to be disclosed, Nixon A.C.J., noted that a party’s Affidavit of Records should comply with Rule 5.7 to ensure the proper disclosure of privilege claims over multiple records. Nixon A.C.J. found it appropriate for the parties to revise their Affidavits of Records to give a fuller description of the materials over which privilege was being claimed.

Nixon A.C.J. then addressed the parties’ Applications to compel answers to Undertakings and reviewed each outstanding Undertaking to determine whether it was relevant and material to the issues in dispute.

With respect to Wood Group’s Application against CNOOC requesting production of certain records, Nixon A.C.J. held that the records should be produced since they were not privileged, or the privilege had been waived.

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