5.1: Purpose of this Part (Disclosure of Information)
5.17: People who may be questioned
5.2: When something is relevant and material

Case Summary

The Plaintiffs (Defendants by Counterclaim) brought an Application to compel the Defendants (Plaintiffs by Counterclaim) to answer Undertakings refused during Questioning. The Defendants (Plaintiffs by Counterclaim) filed a cross-Application to compel the Plaintiffs (Defendants by Counterclaim) to answer questions refused during Questioning. In determining whether or not the Undertakings and questions refused were relevant and material, Marceau J. relied on Rules 5.1 and 5.2. Further, Marceau J. relied on the Decision in Suncor Energy Oilsands Limited Partnership v Propak Systems Ltd, 2012 ABQB 789, at paras. 3-5, where Poelman J. outlined the test for determining the materiality of evidence:

[3] In my view, most of the disputes between these parties over undertaking requests can be determined by basic principles and purposes of the discovery process, now called disclosure and questioning in our rules.

[4] The questioning process in an action is fundamentally an inquiry into relevant facts. Further, questions may only seek facts of primary relevance (those directly in issue) or secondary relevance (from which the existence of primary facts may be directly inferred), not tertiary relevance (information that might lead to facts or records of secondary relevance).

[5] Furthermore, rule 5.25 (1)(a) of the Alberta Rules of Court provides that “a person is required to answer only ... relevant and material questions.” Under rule 5.2 (1)(a), “a question ...is relevant and material only if the answer to the question ... could reasonably be expected ... to significantly help to determine one or more of the issues raised in the pleadings.” The Court of Appeal elaborated on that definition, as follows:

The materiality of evidence refers to its pertinency or weight in relation tothe issue it is adduced to prove: Black’s Law Dictionary, (6th ed. 1990).Facts or documents may be relevant within Rule 186.1, but, either alone orin combination with other evidence, be of no significant help to theexamining party in proving or disproving a fact in issue. As Slatter J.observed in Weatherill Estate v.Weatherill, (2003) 337 A.R. 180 (Q.B.),2003 ABQB 69 at para. 17, “... relevance is determined by the pleadingswhile materiality is more a matter of proof ...”. See also Tolko Industries Ltd. v. Railink Ltd. (2003), 14 Alta. L.R. (4th) 388, 2003 ABQB 349 atpara. 6. (references omitted)

Marceau J. then determined on a case by case basis whether or not the objected to Undertakings or questions were relevant and material to the Action.

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