Carroll v ATCO Electric Ltd., 2013 ABQB 720

Court of Queen ’ s Bench of Alberta Citation: Carroll v ATCO Electric Ltd., 2013 ABQB 720 Date: 20131205 Docket: 1103 01724 Registry: Edmonton Between: John Carroll Plaintiff - and - ATCO Electric Ltd. and Canadian Utilities Limited Defendants _ ________________________________________ ______________ Reasons for Judgment of L. A. Smart , Master in Chambers _________________________________________ ______________ Introduction [ 1 ] The Plaintiff, John Carroll, (Carroll) seeks damages for wrongful dismissal as a result of termination of his employment from ATCO Electric Ltd. (ATCO Electric).

Carroll has served a Notice to Attend for Questioning on Nancy C. Southern who is the Deputy Chair, President and Chief Executive Officer of ATCO Ltd. and Canadian Utilities Limited (CU) to which ATCO Electric is a subsidiary. ATCO Electric and CU (collectively ATCO) apply to set aside the Notice to Attend and to excuse Ms. Southern from being examined in this action. [ 2 ] Who may be questioned is governed by rule 5.17 (1), and what is relevant and material under rule 5.2 (1) of the Alberta

Rules of Court . These are set out below with the emphasis added from the brief of ATCO Electric: Rule 5.17(1) A party is entitled to ask the following persons questions under oath about relevant and material records and relevant and material information : (

a) each of the other parties who is adverse in interest; (

b) if the party adverse in interest is a corporation, (

i) one or more officers or former officers of the corporation who have to appear to have relevant and material information that was acquired because they are or were officers of the corporation, and (ii) the corporate representative; ... (

d) one or more other persons who are or were employees of the party adverse in interest who have or appear to have relevant and material information that was acquired because of the employment; Rule 5.2(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. [ 3 ] ATCO does not challenge that Ms. Southern falls within the category of one who may be questioned except to the extent that it is limited by relevance and materiality. It also relies on the ability of the Court to modify or waive any right or power under a rule in

Part 5: Disclosure of Information as set out in rule 5.3 (1), which reads as follows: 5.3(1) The Court may modify or waive any right or power under a rule in this Part or make any order warranted in the circumstances if (

a) a person acts or threatens to act in a manner that is vexatious, evasive, abusive, oppressive, improper or tediously lengthy, or (

b) the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit. Arguments and Discussion [ 4 ] Wittmann, CJ in Richardson v. Shell Canada Ltd ., 2012 ABQB 170 described what is relevant and material as follows: In Alberta, even discovery must be “relevant and material”: Alberta Rules of Court 5.2.

By definition, the evidence is relevant and material only if the answer to a question or the record or information can reasonable (sic) expect to significantly help determine one or more of the issues raised by the pleadings or help ascertain evidence that could reasonably expect to significantly help determine one or more of the issues raised in the pleadings.

The key word is “significantly”. [ 5 ] Carroll says that the crux of the contentious factual disputes in the lawsuit relate to entitlement to his 2010 bonus (earned in 2009), compensation during his reasonable notice period, loss of pension and SERP (Supplemental Executive Retirement Plan). It is argued that Ms. Southern has information which could reasonably be expected to significantly help determine contentious issues pertaining to those disputes. ATCO takes the position that it has acknowledged that Carroll’s dismissal was without cause.

Pension and SERP are contractual and statutorily prescribed plans and what is payable thereunder is effectively arithmetic calculations. Finally, it says that Ms. Southern has little personal knowledge of the determination of the performance rating given to Carroll and ultimately the determination of his bonus. [ 6 ] I am substantially in agreement with the position taken by ATCO except as it relates to the question of Carroll's compensation and bonus. It is argued that Ms.

Southern does not play a significant role in determining such matters, however, in the CU Notice of Annual Meeting of Shareholders and Management Proxy Circular for the Meeting to be held on May 6, 2010, it is stated that the Chief Executive Officer reviewed all executive performance assessments and the recommended calibration. The Chief Executive Officer then provided GOCOM (Corporate Governance - Nomination, Compensation and Succession Committee) with a final recommendation on performance rating, individual performance factor, and a discretionary bonus for each executive.

It is noteworthy that there does not appear to have been a detailed performance assessment of Carroll's or at least none that Carroll recalls. How Ms. Southern as CEO completed her task as contemplated and arrived at her conclusions and recommendations to GOCOM appears to be relevant and material information which could reasonably be expected to assist in resolving the factual dispute pertaining to the appropriate compensation and bonus for Carroll.

I agree with ATCO that should the trial determine that the appropriate compensation and bonus differ from what Carroll received then it will be factored into any entitlement to pension or SERP by calculation and Ms. Southern’s involvement in that regard is of no moment. [ 7 ] Notwithstanding, ATCO has argued that, in light of Ms. Southern's demanding schedule, the expense, delay, and difficulty with complying with a Notice to Attend for Questioning would be disproportionate to any likely benefit. There is little doubt that Ms. Southern's

schedule will be infringed upon by questioning, however, in my view it is of sufficient importance in this action to tilt the balance in favor of directing questioning. [ 8 ] Counsel for Carroll has indicated that they are prepared to attend in Calgary at the offices of Ms. Southern in order to

conduct the questioning. I will not attempt to define or limit the scope of questioning as it is impossible to determine in advance where questioning might lead, however, Carroll’s counsel should be cognizant of the limited basis upon which questioning of Ms. Southern has been allowed. In order to regulate this questioning process, I direct that questioning may not exceed one day which in my view should be significantly more time than is necessary given the issues upon which Ms. Southern is to be examined. If Carroll wishes to have more time, absent agreement of the parties, it may be sought on further application before me.

Summary & Order [ 9 ] Carroll shall be entitled to one day of questioning of Ms. Southern. As offered by Counsel for Carroll the questioning shall be completed at Ms. Southern’s office or such other location in Calgary as reasonably determined by ATCO’s Counsel. I leave it to Counsel to agree on a reasonable date failing which they may apply for one to be set. [ 10 ] After some consideration, I have concluded that the costs of this application are best dealt with by the trial judge. Dated at the City of Edmonton, Alberta this 5 th day of December, 2013. L. A. Smart M.C.C.Q.B.A.

Appearances: Kevin Feehan, Q.C. and Morgan Deacon Fraser Milner Casgrain LLP for the Plaintiff James D'Andrea Bennett Jones LLP for the Defendants