The Applicant Plaintiffs sought further and better record production from some of the Defendants; penalties for providing late, incomplete, and improper disclosure; and the appointment of an additional or substitute corporate representative for one of the Defendants.

Marion J. emphasized the parties' obligations under several Rules: Rule 1.2(1) to resolve claims fairly, justly, and efficiently; Rule 5.1 to obtain evidence to define issues and encourage early disclosure to facilitate resolution and minimize delays and cost; Rule 1.2(3) to resolve claims quickly and economically; Rule 4.1 for managing and planning dispute resolution; and Rules 4.3(2) and 4.5(1)(b)(ii) for determining case complexity and agreeing on record production protocols for complex cases.

The Court emphasized the importance of early discovery planning, especially for significant electronic records, and the mandatory self-discovery system under Rule 5.2, which requires parties to disclose relevant and material records. Alberta Courts have incorporated proportionality to ensure suitable discovery procedures. Rule 5.3 allows the Court to modify or waive discovery requirements or order cost-shifting if compliance is disproportionate. Further, the Rules provide the Courts with several tools to sanction non-compliance with discovery obligations: Rule 5.12 (breach of Rules 5.5 or 5.10, or an Order under Rule 5.11), Rule 1.5(6), Rule 10.49 (noncompliance with the Rules), and Rule 10.52 (contempt of court).

The Court noted that the discovery process in this case was problematic from the start. The parties failed to formally designate the Action as a complex case, which would have required them to agree on a production protocol. Despite experienced counsel and the complexity of the construction project, there was no initial pre-discovery planning or consultation. This lack of preparation led to inefficiencies and delays. The Respondents' inadequate and careless discovery process led to delays and higher costs, resulting in thousands of relevant records initially being missed.

The Court then dealt with the Plaintiffs’ Application for penalties pursuant to Rule 5.12 and 10.49 for the Respondents’ breach of their disclosure and production obligation.

Justice Marion noted that Rule 5.12 permits monetary penalties for non-compliance with discovery deadlines or Orders. While it mainly addresses missed deadlines, it can also apply to deficient disclosure. In this case, the Respondents submitted their Affidavits of Records about two months late, but this was not the primary complaint in the Plaintiffs' Application. Consequently, Marion J. found a penalty under Rule 5.12 inappropriate and suggested considering costs or general non-compliance rules (Rules 1.5(6) and 10.49) instead. Rule 1.5 allows the Court to grant relief in cases of procedural non-compliance, with Rule 1.5(6) enabling penalties under Rule 10.49 for non-compliance affecting the administration of justice. In this case, the Respondents’ inadequate and careless discovery process led to delays and higher costs, prompting the Court to impose a $7,500 penalty to deter similar conduct in the future.

The Court then considered whether to appoint a substitute or additional corporate representative for the Respondents. Under Rule 5.4(1), a corporation must act through a human representative, and the Court can intervene if the chosen representative is unsuitable. Justice Marion found that, while the current representative had shortcomings in the disclosure of records, these did not warrant his replacement. The Court noted that due to the broad scope of the project, no single representative could address all matters, and significant Undertakings would be required regardless. Additionally, the proposed alternatives, who were semi-retired and less involved, were not deemed more suitable, and compelling them would be unfair. Thus, Marion J. dismissed the Plaintiffs' Application to replace the corporate representative, as it was not demonstrated that a change was necessary.