Penn West Petroleum Ltd v Devon Canada Corporation, 2016 ABQB 623

Court of Queen’s Bench of Alberta Citation: Penn West Petroleum Ltd v Devon Canada Corporation, 2016 ABQB 623 Date: 20161108 Docket: 1401 13505 Registry: Calgary Between: Penn West Petroleum Ltd. Plaintiff - and - Devon Canada Corporation and Canadian Natural Resources Limited Defendants _______________________________________________________ Memorandum of Decision of J.T. Prowse , Q.C.

Master in Chambers _______________________________________________________ [ 1 ] Counsel for the plaintiff Penn West Petroleum Ltd.(“Penn West”), wishes to cross-examine the deponent of the defendant, Canadian Natural Resources Limited (“CNRL”), on the Affidavit of Records (“AOR”) of CNRL. [ 2 ] Counsel for CNRL takes the position that such a cross-examination can only take place with leave of the Court.

In other words, he asserts that Penn West cannot cross-examine the CNRL’s deponent as of right. [ 3 ] The Rules of Court are silent on this issue. [ 4 ] My decision is that a party may cross-examine an adverse party’s AOR deponent as of right, without the necessity of obtaining leave of the court. This is based on general policy considerations, not on the facts of this specific case. [ 5 ] This does not prevent the recipient of a notice to cross-examine from moving to set aside the appointment if there are grounds for arguing that the proposed cross-examination is unnecessary or abusive.

Rules dealing with cross-examination on affidavits of records

[ 6 ] The old Rules of Court used to deal with this topic expressly. Old Rule 414(1) stated: A person who has made an affidavit, including an affidavit of documents, filed in any action or proceedings, may be cross-examined on the affidavit without order. [ 7 ] New Rule 6.7 does not deal with AORs. It is inapplicable to the question at hand because it only deals with affidavits in support of an application or in reply to an application.

It states: 6.7 A person who makes an affidavit in support of an application or in response or reply to an application may be questioned, under oath, on the affidavit by a person adverse in interest on the application ... [ 8 ] A rule which does deal with cross-examination on AORs is Rule 5.11. It permits cross-examination on AORs to assist the Court in making a determination as to whether a record should be produced. In my view, that specific reference does not detract from a party’s general right to cross-examine on an AOR.

Rule 5.11 states: 5.11(1) On application, the Court may order a record to be produced if the Court is satisfied that (

a) a relevant and material record under the control of a party has been omitted from an affidavit of records, or (

b) a claim of privilege has been incorrectly or improperly made in respect of a record.

(2) For the purpose of making a decision on the application, the Court may (

a) inspect a record, and (

b) permit cross-examination on the original and any subsequent affidavit of records (emphasis added) Should cross-examination as of right be allowed with respect to AORs? [ 9 ] The purpose and intention of the Rules of Court is set out in Rule 1.2(1) as follows: The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost - effective way. [ 10 ] Issues which are not specifically addressed in the Rules can be dealt with by the Court under Rule 1.4, which states: To implement and advance the purpose and intention of these rules described in rule 1.2 the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court. [ 11 ] The reason why I am allowing Penn West to cross-examine CNRL’s deponent on his/her AOR as of right is that this procedure will, in my view, assist in resolving the issues before the court in a timely and cost-effective way.

It will allow the parties to efficiently prepare for and conduct discoveries after first reviewing each other’s relevant and material documents. [ 12 ] Having one party, at examinations for discovery, go through the chronology of events and uncover relevant documents one at a time during that process is time consuming and inefficient. It inevitably leads to unnecessary adjournments and future continuations of discoveries.

Potential for abuse [ 13 ] Allowing cross-examination on an AOR is not meant to give a party two chances at examination for discovery of adverse parties. [ 14 ] By necessity, some questions on a cross-examination of an AOR will deal with the issues of the case, because it is the issues in the case which define what is relevant and material.

But that does not open up the scope of a cross-examination on an AOR to the extent of an examination for discovery. [ 15 ] For example, if an issue in a case is what happened at a particular meeting, after questions establish that a meeting occurred, the proper question on a cross-examination on an AOR is whether there is a recording or notes of the meeting, not what was said at the meeting. Conclusion [ 16 ] In my view, the deponent of an AOR can be cross-examined as of right.

If the party to be examined believes, in the particular circumstances of the case, that the cross-examination is unnecessary or abusive they can move to set aside the appointment. Costs [ 17 ] As counsel indicate that there is no current case law on this issue, I direct that the costs of this application be in the cause. Heard on the 02 nd day of November, 2016.

Dated at the City of Calgary, Alberta this 07 th day of November, 2016. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: James P. Flanagan McLennan Ross LLP for the Defendant Canadian Natural Resources Limited Kate Andrews Blake, Cassels & Graydon LLP for the Plaintiff Penn West Petroleum Ltd.