Penn West Petroleum Ltd v Devon Canada Corporation, 2017 ABQB 26

Court of Queen’s Bench of Alberta Citation: Penn West Petroleum Ltd v Devon Canada Corporation, 2017 ABQB 26 Date: 20170116 Docket: 1401 13505 Registry: Calgary Between: Penn West Petroleum Ltd. Respondent/Plaintiff - and - Devon Canada Corporation and Canadian Natural Resources Limited Appellant/Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.D. Macleod _______________________________________________________

Appeal from the Decision by J.T. Prowse, Q.C., Master in Chambers Filed on the 08th day of November, 2016 Dated the 07 th day of November, 2016 ( 2016 ABQB 623 ) [ 1 ] This is an appeal from the decision of J.T. Prowse, Q.C., Master in Chambers (ABQB 623) in which he refused to set aside an appointment to cross examine the deponent of Canadian Natural Resources Limited (“CNRL”) on its Affidavit of Records.

The Master acknowledged that the Alberta Rules of Court were silent on the subject and decided, as a matter of policy, that an adverse party may cross examine a deponent on an Affidavit of Records as of right without the necessity of obtaining leave of the Court. He went on to say, however, that a party may move to set aside the appointment if there are grounds for arguing that the proposed cross examination is unnecessary or abusive. The appellant argues that the Master erred in law.

The standard of review is one of correctness. [ 2 ] The appellant CNRL argues that the new rules under which we are currently operating are different from the old rules and in particular they no longer contain old Rule 4.4(1) of the Alberta Rules of Court which 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. [ 3 ] The argument is that the rules ought to be interpreted the same way as legislation and should be examined as a whole.

Changes may have important implications and as a general rule, I agree. [ 4 ] The existing rule which speaks to cross examination on an Affidavit of Records can be found in Rule 5.11, which provides that a Court may order a record to be produced notwithstanding it has not been and for the purposes of making a decision may permit cross examination on an Affidavit of Records. Accordingly, CNRL’s argument is that the new rules do not provide a right to cross examine on an Affidavit of Records without leave. [ 5 ] But the matter is not that simple.

The old rules contained Rule 196 which is virtually identical to the current Rule 5.11. The new rules were completely reorganized into parts and divisions designed to make them more user friendly by putting rules under 15 general headings. The result is that the Rule 6.7 provides for the right to cross examine on Affidavits used in support and in response to applications without an order. I think it is unclear that the drafters of the new rules intended to make a change as to whether or not an affiant to an Affidavit of Records maybe cross examined as a matter of a right.

It is just as likely that the drafters did not consider the point at all. [ 6 ] I say that because I disagree with the position of CNRL that restricting the cross examination on an Affidavit of Records does anything to accomplish the stated goals in the foundational rules, the most important of which is Rule 1.2(1): 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. [ 7 ] The Affidavit of Records is a pivotal document under the new rules and there are specific time limits as to when must it be filed.

That Affidavit sets out the entire documents production of the party and it is sworn by the corporate representative. It is impossible to test the methodology or the adequacy of document production without cross examining on that affidavit. [ 8 ] Furthermore, Rule 5.17 entitles an adverse party to ask in questioning about relevant and material records. This would, as Mr.

Flanagan acknowledged during argument, include questions about the Affidavit of Records. [ 9 ] Therefore, I see nothing to be gained, in terms of expediting litigation, by requiring a party to obtain the Court’s permission to cross examine a party or its representative on an Affidavit or Records. It adds another step needlessly. Under the new rules parties are required to manage their own litigation. If they wish to challenge the document production they ought to be able to cross examine the affiant without a Court order.

If such as step is abusive, the right to cross examination could be denied. [ 10 ] In conclusion, I am in full agreement with Master Prowse that the deponent of an Affidavit of Records 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, a motion can be made to set aside the appointment. [ 11 ] The Respondent shall have its costs of the appeal. Heard on the 13 th day of December, 2016. Dated at the City of Calgary, Alberta this 16 th day of January, 2017.

A.D. Macleod J.C.Q.B.A. Appearances: James P. Flanagan McLennan Ross LLP For the Appellant/Defendant Canadian Natural Resources Limited Kate Andrews Blacks, Cassels & Graydon LLP for the Respondent/Plaintiff Penn West Petroleum Ltd