DOW CHEMICAL CANADA INC v NOVA CHEMICALS CORPORATION, 2015 ABQB 2
3.68: Court options to deal with significant deficiencies
5.10: Subsequent disclosure of records
5.11: Order for record to be produced
5.2: When something is relevant and material
6.11: Evidence at application hearings
The Plaintiffs brought two Applications to: (i) direct the Defendant to produce documents; and (ii) strike the Defendant’s defence for failure to comply with Orders. The underlying dispute pertained to production and operation issues relating to two ethylene plants owned by the Defendant, and one plant jointly owned by both parties.
The documents which the Plaintiff sought to have the Defendant produce included records about the productive capability to optimize ethylene production of one of the plants, conversion of the Plaintiff’s ethylene and spreadsheets calculating daily distribution of ethylene. Chief Justice Wittmann stated that Rule 5.2 is applicable to both production of records and Questioning, with relevance being primarily determined by reference to the Pleadings, and materiality by whether information can assist in proving a fact in issue. Wittmann C.J. was not satisfied that additional relevant and material records existed or, if they did exist, that they had been withheld by the Defendant.
The Court then addressed the Application to Strike for the failure to produce relevant and material documents in a timely manner as ordered in the Case Management Orders. His Lordship noted that the Application was governed specifically by Rules 3.68(4)(b)(ii) and (iii).
Under Rule 3.68(4)(b), the Applicant needed to prove that the Defendant failed to do an act it was required to do without sufficient cause. The Defendant argued it had diligently complied with its duty to disclose its records and, for any records not disclosed in a timely manner, there was sufficient cause. Both parties agreed that all the materials before the Court could be considered for this Application. The Plaintiff identified a number of records which were not produced, but it did not identify whether any of those documents were relevant and material to the issues. The Plaintiff did not cross-examine the Defendant’s Affiants after the Defendant filed three Affidavits in opposition to the Application to Strike, but the Plaintiff then attempted to impugn the evidence contained in the Affidavits. The Court exercised its discretion to discount the evidence relied on by the Plaintiff. Under the circumstances, both Applications were dismissed.View CanLII Details