LJ RESOURCES CO LTD v INDEPTH ENERGY INC

The Defendants applied to admit Affidavit evidence (the “New Affidavit Evidence”) into the record for their Rule 4.31 Applications to dismiss the Plaintiff’s claim (the “Delay Applications”). The New Affidavit Evidence was filed and served after the completion of procedural deadlines which were set pursuant to an Order arising from a Rule 4.10 Case Conference (the “Procedural Order”).

The Defendants argued that the New Affidavit Evidence should be admissible because it was not reasonably discoverable prior to the deadlines set in the Procedural Order and was material to the issues to be determined on the Delay Applications. The Plaintiff argued that the New Affidavit Evidence was procedurally inadmissible because it was served ten months after the evidentiary record for the Delay Applications had closed and without advance notice to the Plaintiff nor leave of the Court. The Plaintiff also took the position that the New Affidavit Evidence was substantively inadmissible because it was not compliant with Civil Practise Note 1 or Rule 6.6(2).

In deciding if the New Affidavit Evidence should be admitted, the Court relied on the case of Guillevin International Co v Barry, 2022 ABCA 144 which offered an interpretation of Rule 6.6.(2). According to Justice Jugnauth, the Delay Applications, given their potential impact, should be decided on the complete record. Jugnauth J. held that the New Affidavit Evidence dealt with issues prudent to the Delay Applications and its admissibility would be aligned with the foundational Rules that promote a fair and just determination.

The Court did not agree that the Procedural Order had the effect of freezing the record. Justice Jugnauth spoke to the wording in Civil Practise Note 1 which cites Rule 6.11. Specifically, that it permits Court discretion.

Further, according to Jugnauth J., Rules 6.3 and 6.6 seek to regulate the orderly exchange of information prior to an Application being heard, but there is nothing in the Rules that would prohibit the filing of further evidence. Thus, the Court permitted the New Affidavit Evidence to be admitted to the record in support of the Delay Applications.