Rule Details
CNOOC PETROLEUM NORTH AMERICA ULC v 801 SEVENTH INC, 2026 ABKB 570
Rules Discussed
- Rule 5.11 Order for record to be produced
- Rule 5.2 When something is relevant and material
- Rule 5.5 When affidavit of records must be served
- Rule 5.6 Form and contents of affidavit of records
Case Summary
The Plaintiff, CNOOC Petroleum North America ULC, and the Defendant by Counterclaim, CNOOC Limited (collectively, the “CNOOC Parties”), applied pursuant to Rule 5.11 for an Order for further and better Affidavits of Records from the Defendant, 801 Seventh Inc (the “Landlord”), and the other Defendants (the “Beneficial Owners”) (collectively, the “Respondents”).
The underlying Action arose from a dispute concerning a commercial lease. The CNOOC Parties brought these Applications following the conclusion of the liability phase of the Action and before the assessment of damages. In an earlier 2026 decision, Associate Chief Justice Nixon granted the CNOOC Parties leave to amend their Statements of Defence to Counterclaim. Following those amendments, the Landlord produced a fifth supplemental Affidavit of Records disclosing new records. The Beneficial Owners also provided supplemental Affidavits of Records stating that any further relevant and material records in their control had already been produced by the Landlord.
In their Applications, the CNOOC Parties requested the production of communication and financial records that were not disclosed in the Respondents’ supplemental Affidavits of Records. The CNOOC Parties also sought an Order requiring the Respondents to undertake a new record collection process, arguing that the Respondents’ failure to communicate a document-retention policy had resulted in relevant and material records being overlooked or destroyed.
Nixon A.C.J. emphasized the importance of the disclosure obligations imposed by Rules 5.5 and 5.6, reviewed the test governing applications under Rule 5.11, and considered the meaning of “relevant and material” under Rule 5.2.
The Court held that the CNOOC Parties had failed to establish, on a balance of probabilities, that any additional records ought to be produced. Associate Chief Justice Nixon found that a failure to communicate a retention policy did not, by itself, prove that relevant and material records were destroyed or not disclosed. Nixon A.C.J. also concluded that the CNOOC Parties’ production requests amounted to impermissible fishing expeditions, based on unrealistic or speculative premises.
The Court dismissed the CNOOC Parties’ Applications in their entirety.