GEOPHYSICAL SERVICE INCORPORATED v ENCANA CORPORATION, 2016 ABQB 49
6.11: Evidence at application hearings
6.14: Appeal from master’s judgment or order
The Plaintiff (“GSI”) appealed 26 Master’s Orders for Security for Costs granted to various Defendants in 17 Actions. There were many issues on Appeal, one being whether the Master erred in utilizing evidence from Security for Costs Applications heard in October and November 2014 in the Actions to assist the Master in deciding the Security for Costs Application heard in February 2015. The Master had given the parties leave under Rule 6.11(1)(f) to refer to and rely on evidence filed in the other Applications in the February 2015 Security for Costs Application. However, GSI submitted that the Master erred in utilizing evidence from the February 2015 Application to determine the previous October and November 2014 Applications. Strekaf J. held that utilizing some evidence of the February 2015 Application to decide the October and November 2014 Applications was not authorized by the Master’s own previous Order, and as such was an error.
Strekaf J. considered whether the Court could consider only the evidence on the record for the Security for Costs Applications, or if the Court could use the entire evidentiary record, including the earlier evidence. Strekaf J. noted that Rule 6.14(3) provides that an Appeal from a Master’s Order or Judgment may also be based on additional evidence that is, in the opinion of the Judge hearing the Appeal, relevant and material. Strekaf J. also noted that Rule 6.14(6) provides that a Respondent to an Appeal is to file and serve on the Applicant any additional evidence referred to in Rule 6.14(3). Strekaf J. observed that the various Defendants did not serve GSI with the evidence from the February 2015 Application; however, as part of the overall record on Appeal, GSI had access to that evidence and no prejudice resulted. Strekaf J. held that the evidence on the record from the February Application was relevant, material and helpful to the Court in deciding the Appeal of the October and November 2014 Applications. Her Ladyship determined that this was consistent with the foundational principles of the Rules of Court which attempt to have claims “fairly and justly resolved in a timely and cost-effective fashion”.
The Appeal was allowed to the extent that the amounts GSI was ordered to post for Security for Costs were varied and reduced.View CanLII Details