Green-Fields Enterprises Inc. v. Nufarm Agriculture Inc., 2012 ABQB 689

Court of Queen ’ s Bench of Alberta Citation: Green-Fields Enterprises Inc. v. Nufarm Agriculture Inc., 2012 ABQB 689 Date: 20121121 Docket: 1009 00042 Registry: Peace River Between: Green-Fields Enterprises Inc. and Harry Krawchuk Plaintiffs - and - Nufarm Agriculture Inc. and St. Isidore Co-Op Limited Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P.M.

Clark _______________________________________________________ Introduction [ 1 ] This is an application brought before me in morning Chambers in Peace River by the Plaintiffs, Green-Fields Enterprises Inc. ( “ Green-Fields ” ) and Harry Krawchuk, to compel answers to undertaking sought from Defendants, Nufarm Agriculture Inc. ( “ Nufarm ” ) and St.

Isidore Co-op Limited. [ 2 ] It is Nufarm ’ s position that it should not be required to provide answers on the basis that the questions are irrelevant to Green-Field ’ s cause of action, they are unduly onerous to answer, or the materials are covered by litigation privilege. Facts

[ 3 ] The Plaintiff carries on a farming business near Nampa, in the Province of Alberta. The Defendant, Nufarm, is a federal corporation, incorporated pursuant to the laws of the Province of Alberta and carries on the business as a retailer of crop input products in the hamlet of St. Isidore, Alberta. [ 4 ] In the spring of 2008, the Plaintiffs purchased a quantity of agricultural herbicide (CleanStart TM ). The said CleanStart TM was manufactured and distributed by the Defendant Nufarm. [ 5 ] The Plaintiffs purchased the CleanStart TM herbicide from the Defendant, St.

Isidore Co-op Limited. [ 6 ] In late May, 2008, the Plaintiffs sprayed 720 acres of their land with the herbicide CleanStart TM . They allege that they did so in the manner and on the terms specified by Nufarm. [ 7 ] The Plaintiffs allege that the herbicide CleanStart TM did not control the volunteer Round-up ready canola on the Plaintiffs ’ land and as a result of the failure of CleanStart TM to control the Roun-up ready canola, the Plaintiffs suffered a substantial loss of yield on 720 acres of canola.

The Plaintiffs allege they have lost the production of 8,335 bushels of canola which at the material period of time had a value of $9.00 per bushel.

The Plaintiffs allege they have suffered an economic loss of $75,016.80 due to the failure of CleanStart TM . [ 8 ] Questioning in the within action was held on November 17, 2010. [ 9 ] In the questioning, Benton Robert McLennan was produced as an officer of Nufarm such that his answers would be binding as if he was an officer of Nufarm. [ 10 ] In the course of questioning, the representative of the Defendant declined to answer certain questions on the advice of counsel. The questions that are subject of this application are as follows: (

a) Do you know if Nufarm Agriculture Inc. received complaints from retailers, or from farmers, that the “ AIM ” did not control certain weeds, in particular Roundup Ready canola?; (

b) Counsel for the Plaintiff requested that the representative of Nufarm “ provide the dates, places and results of tests of the Agrinomic performance of “ AIM ” done by the Defendants Nufarm in Alberta up to the present. [ 11 ] In correspondence between counsel, Nufarm refused to answer that undertaking. (

c) Did (Clayton Butz) report that farmers other than the Plaintiffs had complaints with regard to the performance of AIM? Alberta Rules of Court Disclosure Information [ 12 ]

Part 5 of the Rules of Court relates to the disclosure of information. Rule 5.1(1) provides: 5.1(1) Within the context of rule 1.2, the purpose of this

Part is (

a) to obtain evidence that will be relied on in the action,

(

b) to narrow and define the issues between parties, (

c) to encourage early disclosure of facts and records, (

d) to facilitate evaluation of the parties ’ positions and, if possible, resolution of issues in dispute, and (

e) to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them. [ 13 ] Rule 5.2 states:

(1) For the purposes of this Part, a question, record or information is relevant and material only if the answer to the question, or the record or information, could reasonably be expected (

a) to significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.

(2) The disclosure or production of a record under this Division is not, by reason of that fact alone, to be considered as an agreement or acknowledgment that the record is admissible or relevant and material. [ 14 ] Complaints from farmers or retailers with respect to the product would be of neither primary nor secondary relevance are not material to the issues raised in the pleadings. [ 15 ] The Defendants have been successful in the action before me and are entitled to their costs. Heard on the 19 th day of July, 2012. Dated at the City of Calgary, Alberta this 6 th day of November, 2012. P.M. Clark J.C.Q.B.A. Appearances: D. Freeland

for the Plaintiffs D. McGarvey for the Defendant Nufarm Agriculture Inc.