Cho v Twin Cities Power-Canada ULC, 2016 ABQB 499

Court of Queen’s Bench of Alberta Citation: Cho v Twin Cities Power-Canada ULC, 2016 ABQB 499 Date: 20160906 Docket: 1101 01630 Registry: Calgary Between: Allan Cho, Jason Vaccaro and Jason Brown Plaintiffs Defendants by Counterclaim - and - Twin Cities Power-Canada, U.L.C. (currently known as Twin Cities Power-Canada Ltd.), Twin Cities Power, L.L.C., Twin Cities Power Holdings, L.L.C., Twin Cities Power Services, L.L.C., Twin Cities Energy, L.L.C. and Timothy Krieger Defendants Plaintiffs by Counterclaim - and - _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.L.

Rawlins _______________________________________________________ [ 1 ] This is an application by the plaintiff Allan Cho for an order compelling the defendants to produce Brandon Day for questioning. The defendants object saying that Mr.

Day never worked for any Twin Cities companies and has only worked for a separate entity, Cygnus Energy, and has no relevant information to provide to this action. [ 2 ] I am the case management Justice on this file and therefore have not provided a narrative history of the background of the issues involved because all the parties are familiar with these. [ 3 ] Counsel for the plaintiff, Mr. Cho, disagrees and while he acknowledges that Cygnus is a separate entity, relies upon Esso

Resources Canada Limited v Stearns Catalytic Ltd 1992 CarswellAlta 33 to show that Mr. Day is akin to an employee of Twin Cities and thus producible. [ 4 ] I note the plaintiff has already been unsuccessful in getting Cygnus added as a party in earlier proceedings. I have had the benefit of reviewing the transcript of Mr. Day at the FERC proceeding and firstly agree with the plaintiff’s assertion that Mr. Day is akin to an employee of Twin Cities. Although he repeatedly acknowledges that Cygnus was his small company with a partner and desired it to be totally separate from Twin Cities, it is clear that Mr.

Krieger ran the many Twin Cities companies including Cygnus as a single unit. [ 5 ] The animosity that Mr. Day had for Mr. Cho was that Mr. Cho’s risky behaviour could be a direct financial threat to the bottom line of Cygnus – in short they were financially connected in Mr. Day’s mind. It is also clear that Mr. Day, although in many answers in his questions during the FERC proceedings did not have a factual basis for his concerns about the behaviour of Mr.

Cho, (which he found fool hearty), had many suspicions about the type of trades which were occurring in Twin Cities Canada and it was that threat that he found intricately connected to his bottom line which he felt eventually lead to Mr. Cho’s dismissal. [ 6 ] In fact at one point in the transcript, in reference to the firing of Mr. Cho, Mr. Day said “Tim was just tired of them” (referring to the Canadian traders). He was tired of the headaches it was causing me (emphasis added). We’re his most profitable business centre”. [ 7 ] These companies were hardly running separately. [ 8 ] Having determined that Mr.

Day was a person akin to an employee of Twin Cities, did he really provide any relevant information during the FERC deposition sufficient to requiring him to be produced? I find that he did and I grant the application as requested and compel Brandon Day to attend for questioning. [ 9 ] I am aware that an Alberta court cannot compel a U.S. resident to attend for questioning but it is clear from the application that counsel for the plaintiff was aware this was a possibility and requested the order in any event. Heard on the 30 th day of August, 2016.

Dated at the City of Calgary, Alberta this 6th day of September, 2016. B.L. Rawlins J.C.Q.B.A. Appearances: Peter R.S. Leveque For Allan Cho the Plaintiff/Defendant by Counterclaim Zul Verjee, Q.C. and Megan A. Klein For Jason Vaccaro and Jason Brown the Plaintiffs/Defendants by Counterclaim Robb Beeman and Jennifer Biernaskie for the Defendants/Plaintiffs by Counterclaim