CNOOC PETROLEUM NORTH AMERICA ULC v SUNSTONE PROJECTS LTD

The Appellants appealed a case management decision refusing to compel production of records related to replacement of two pipelines, and refusing to compel questioning of non-party entities. The non-parties were affiliated with CNOOC Petroleum North America ULC (“CNOOC”) but were separate legal entities and not parties to the Action. They Appellants argued that CNOOC controlled records held by affiliated entities, that the non-party production requests were sufficiently particularized, and that the affiliates stood in a sufficiently close relationship to permit questioning pursuant to Rule 5.18.

The Court of Appeal dismissed the Appeal. With reference to Rule 5.11, the Court confirmed that “control” over a non-party’s records requires a legal right to access or obtain them. Contractual audit rights and operational integration were not enough on the record before the Case Management Judge, and no palpable and overriding error was shown. Pursuant to Rule 5.13, the requests were overly broad and amounted to non-party discovery rather than targeted requests for specific records. Under Rule 5.18, the evidence did not establish the kind of near-employee relationship required to question the affiliated entities.

The Appeal was dismissed. The Court also declined to interfere with the related costs Order.