Cherokee Canada Inc v Alberta, 2021 ABQB 848

Court of Queen’s Bench of Alberta Citation: Cherokee Canada Inc v Alberta 2021 ABQB 848 Date: 20211028 Docket: 1603 21288 Registry: Edmonton Between: Cherokee Canada Inc and 1510837 Alberta Ltd. Plaintiffs - and - Her Majesty the Queen in Right of Alberta and Michael Aiton Defendants _______________________________________________________ Endorsement of W.S.

Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application by Cherokee Canada Inc and 1510837 Alberta Ltd (both “Cherokee”) to test the privilege claimed over 10,939 records by Her Majesty the Queen (“HMQ”), Alberta Environment and Parks (“AEP”) and employee, Michael Aiton. These records are only a small portion of the entire production.

Of these records, for which protection has been claimed and challenged: 7,869 are said to be solicitor client privileged, 302 subject to litigation privilege, 87 subject to public interest immunity, 60 subject to investigative privilege and 10 subject to settlement (‘without prejudice’) privilege. Originally, protected status was claimed over 10,939 records. That number is now down to 6,488. I have reviewed all of these records and direct that the some 831 records listed below be produced. List of Authorities cited by HMQ and Michael Aiton.

Alberta Evidence Act , RSA 2000, c A-18 ; Alberta Rules of Court, Alta Reg 124/2010 ; Canada Evidence Act , RSC 1985, c C-5 ;

Canada Evidence Act, RSC 1970 c E-10; Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25; Ontario Evidence Act, RSO 1980, c 145; Ontario Evidence Act, RSO 1970, c 151; New Brunswick Evidence Act, RSNB 1973 c E-11; Nuisance and General Sanitation Regulation, Alta Reg 243/2003; Public Health Act, RSA 2000 c P-37; A Co v Naster, 2001 CarswellOnt 728, [2001] OJ No 4997 (ONSC); Alberta (Municipal Affairs) v Alberta (Information and Privacy Commissioner), 2019 ABQB 274; Alberta v Suncor Energy Inc, 2017 ABCA 221; Alberta v Suncor Energy Inc, 2016 ABQB 264; Babcock v Canada (Attorney General), 2002 SCC 57; Balabel v Air India, 1988 Ch 317 (Eng CA); Bisaillon v Keable, (SCC), 1983 CarswellQue 384, [1983] 2 SCR 60; Blank v Canada (Department of Justice), 2006 SCC 39; Blood Tribe v Canada (Attorney General), 2010 ABCA 112; British Columbia (Attorney General) v Lee, 2017 BCCA 219; Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2019 ABQB 109; Canada (Attorney General) v Chad, 2018 FC 556; Canada (Competition Act, Director of Investigation and Research) v AC Nielsen Company of Canada Limited, [1994] CCTD No 15;and Canada (Information Commissioner) v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 104. [2] This lawsuit is brought by a developer whose business was allegedly harmed by the regulatory activities of AEP and itsRegional Compliance Manager, Michael Aiton.

It relates to Cherokee’s remediation of a contaminated site purchased from Domtar forthe purposes of residential development. [3] In 2010, Cherokee purchased the land from Domtar on the understanding that they had working approval for remediation ofthis site. In 2011, Cherokee submitted an updated remediation plan to AEP. Part of that plan involved scraping up contaminated soil fromthe old Domtar wood preservation site and enclosing it in a berm contained by clean soil. [4] Cherokee began construction of the berm based on their understanding that AEP had approved this approach.

The berm wasnearly complete when the project was stalled. [5] In December, 2014, Michael Aiton became AEP’s Regional Compliance Manager, Red Deer, North Saskatchewan Region,with a mandate to ensure compliance with the Environmental Protection and Enhancement Act, RSA 2000 c E-12. He was part of a largeturnover of staff in early 2014. [6] Mr. Aiton was not satisfied with his predecessor’s containment assessment, and risk management plans for this development.He was not satisfied with the testing performed by Cherokee. Mr.

Aiton was concerned that the toxic contents of the berm would leakinto the groundwater (inter alia) and create a risk of harm to the residents in the development Cherokee was constructing. In particular,Mr. Aiton appears to have taken the position (unlike his predecessors) that the contents of the berm should properly be treated as ‘wastematerial’ subject to the Alberta Waste Control Regulation, AR 192/1996. [7] This changed approach required an enhanced testing protocol. Mr. Aiton issued a series of regulatory orders, effectivelybringing the development to a stand-still.

All of these orders were subsequently stayed. AEP also entered and performed its own testing.Cherokee sued. [8] Cherokee alleges that Mr. Aiton’s conduct was motivated by incompetence and improper motives. HMQ is sued in trespass,bad faith and negligent misrepresentation. Mr. Aiton is sued in trespass, malicious falsehood, slander of title, defamation, inducingbreach of contract, withholding relevant and material records and, generally, misfeasance in public office.

By directing the disclosure setout below I make no finding about any of the causes of action just named. [9] There are further legal issues raised in this lawsuit such as immunities under the Limitations Act, RSA 2000 c L-12, theEnvironmental Protection and Enhancement Act, and Proceedings Against the Crown Act, RSA 2000 c P-25. Truth, and qualified, or

absolute privilege are raised in response to the allegations of defamation. Lawful authority and consent are raised in response to the alleged trespass. Mr. Aiton and HMQ deny the allegations of negligence, incompetence and bad faith and, generally, their liability to the Plaintiffs. [ 10 ] In

summary, the primary issue in this lawsuit is the alleged change of position by AEP. It is claimed that HMQ is vicariously liable for the acts, words and deeds which stalled the development and, allegedly, caused damages to Cherokee in the tens of millions of dollars. [ 11 ] I set out the above to the extent that context matters to the type of privilege claimed. One of the complicating factors with this review is that there is a continuing obligation on the part of HMQ to discharge statutory oversight responsibilities with respect to this project while the lawsuit is going on.

The process [ 12 ] Originally, the records were to be produced in paper form for Court review. When it was recognized that this involved some 52 to 60 thousand pages of documents in 28 banker’s boxes, the documents were produced electronically. An electronic spreadsheet describing the record, the record itself and the type of protection claimed was provided in confidence to the Court. The spreadsheets alone totalled 3,692 pages. [ 13 ] The records were organized in bundled groups and, in some cases, the protection claimed depended, in part, on the grouping itself.

The challenged production was further refined to provide only the impugned records, the type of protection claimed and their reference in relation to other records from which the protection, in some cases, was said to be derived. The encrypted records were placed on a dedicated laptop for my review. [ 14 ] I have reviewed the records for the types of privilege noted in paragraph one above. Though it will not be known to the Applicants, the production claimed to be protected is highly repetitive, with multiple copies of the same document sometimes appearing in different contexts.

In the list of documents that follows, I have included documents marked ‘without prejudice’ authored by the Applicants. I have not included records that have a production number but which are essentially blank (except for something like a letterhead) as they have no possible relevant and material content. Some of the records produced have only the most tenuous relevance (if any) and though this is a central theme, I have not screened for relevance and materiality. These are all documents determined to be relevant and material by defence counsel.

Further, I note that some of these records might have be protected if produced as part of a bundled group, but individually they cannot enjoy the same protection. [ 15 ] Finally, unless ‘draft’ status was plainly indicated, I have been unable to distinguish between drafts under consideration, which might be protected, and final documents issued which arguably are not. [ 16 ] I am confident that the Records directed to be disclosed do not enjoy the protection claimed. However, Murphy’s Law being what it is, there is the possibility that errors may have crept into the list.

The Respondent may, within seven days; prior to disclosing any of the following records (or launching an appeal), contact me about a potential error of this type. I intend this for what might seem to be an obvious error, not as an invitation for reconsideration. [ 17 ] My direction is that the Respondents, HMQ and Michael Aiton also be given a 14 day grace period to review the list of documents ordered to be produced. They can either produce these records or take steps to challenge my decision. [ 18 ] I find that the following records are not entitled to the protection claimed and must be produced.

As r 5.2(2) indicates and, as noted: “The disclosure or production of a record [under

Part 5 of the rules ] is not, by reason of that fact alone, to be considered as an agreement or an acknowledgment that the record is admissible or relevant and material.” This endorsement is not either.

Group Document Number AB00 1267 54, 55, 56, 59, 60, 61, 64, 77, 78, 79, 82, 83, 95, 98 AB00 1268 00, 02, 04, 05, 07, 11 AB00 1269 26, 51, 53, 55, 58, 59, 60, 64, 65, 67, 68, 69, 70, 71, 72, 73, 91 AB00 1270 05 AB00 1273 70 72 73 75 76 77 81 82 83 85 86 87 AB00 1340 91, 92, 93, 94 AB00 1346 55 AB00 1361 90 AB00 1380 60, 61 AB00 1391 31 AB00 1393 76 AB00 1410 18,20,21,23,24,25 AB00 1415 72 AB00 1420 65 AB00 1421 12, 14, 16, 69 AB00 1425 32 AB00 1431 17, 18, 19, 61, 63 AB00 1436 93, 95 AB00 1438 94

AB00 1453 00, 01, 09, 74 AB00 1456 15, 23, 41, 42, 43, 44, 48, 61, 67, 77, 81, 82, 84, 86, 87, 88, 89 AB00 1457 03,11, 20, 23, 25, 27, 29, 30, 31, 41, 47, 50, 57, 64, 94, 96 AB00 1458 00, 06, 10, 13, 57, 98, 99 AB00 1459 01, 02, 03, 05, 06, 07, 08, 09, 12, 15 AB00 1464 66 AB00 1470 27, 28, 29, 30 AB00 1479 73 AB00 1480 43, 46, 48 AB00 1486 75, 76, 77 AB00 1487 20 AB00 1489 94 AB00 1491 05 AB00 1494 37, 38, 62, 63, 73 AB00 1501 30, 32, 34, 36, 38 AB00 1506 40 AB00 1507 16, 36, 49, 73 AB00 1509 53, 54, 55, 56, 58 AB00 1513 40, 42 AB00 1519 00 AB00 1523 67, 68 AB00 1524 21, 22, 41, 49, 68 AB00 1526 33, 34, 36, 37, 38, 39 AB00 1527 45, 53, 63 AB00 1531 06, 09, 15, 16, 17, 19, 21, 25, 27, 28, 29, 41, 42, 43, 44, 55, 56, 57, 58, 61, 63, 82, 86, 90, 91, 92, 93, 94, 95, 97, 99 AB00 1532 00, 01, 02, 04, 05, 07, 22, 98, 99 AB00 1533 58, 60 AB00 1534 20 AB00 1538 82 AB00 1539 60 AB00 1540 78 AB00 1543 46 AB00 1548 87, 97 AB00 1550 86, 89, 91, 97 AB00 1551 03, 04, 05, 56 AB00 1552 28, 30, 33, 34 AB00 1555 85, 86, 87, 88, 98 AB00 1556 04, 05, 06, 07, 41, 51, 54, 64, 65, 67, 68, 70, 73, 77, 78, 79, 80, 83, 84, 88, 90, 93, 94, 96, 97, 98 AB00 1557 01, 02, 03, 04, 06, 07, 08, 10, 11, 12, 14, 15, 16, 17, 18, 21, 24, 50, 52, 54, 55, 56, 57, 58, 60, 63, 64, 66, 68, 69, 70, 71, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 88, 91, 93, 95, 96, 97, 98, 99 AB00 1558 00, 01, 02, 03, 04, 05, 06, 07, 08, 10, 12, 13, 14, 15, 16, 17, 18, 19, 22 AB00 1560 35 AB00 1561 05, 09, 15, 29, 31, 51, 57, 58, 59, 60, 65, 69, 71, 72, 79, 81, 82, 83, 84, 85, 86, 88, 93 AB00 1562 25, 47, 48, 51, 54, 56, 58, 60, 62, 64 AB00 1563 29, 30, 33, 40, 41, 43, 44, 47, 48, 49, 50, 52, 54, 57, 63, 64, 65, 67, 68, 69, 70, 72, 74, 75, 77, 78, 79, 80 AB00 1564 54, 57, 77, 78, 81, 83, 85, 90 AB00 1565 04, 05, 06, 09, 10, 12, 13, 14, 15,17, 18, 19, 20, 21, 22, 26, 40, 39, 41, 42, 44, 45, 46 AB00 1566 10, 12 AB00 1571 27 AB00 1578 53 AB00 1579 19 AB00 1580 07 AB00 1583 84, 90, 92, 97, 98 AB00 1584 00, 01, 03, 15, 68,72, 84 AB00 1585 12, 18, 20, 25, 27, 36, 38, AB00 1587 73, 74 AB00 1588 48, 50, 55 AB00 1589 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, AB00 1593 21, 85, 95, 97, 99 AB00 1594 00

AB00 1595 34, 35, 36, 70, 86, 87 AB00 1596 33, 34, 35, 48 AB00 1597 46 AB00 1599 25 AB00 1601 14, 16, 89 AB00 1602 40, 43, 53, 61, 65, 67, 68, 69, 78, 79, 95, 96, 97, 98 AB00 1603 01, 36, 37, 38, 41, 43, 45, 47, 49, 51, 54, 58, 61, 62, 63, 64, 65, 66, 70, 73, 76, 78, 80, 81, 82, 84, 91, 92, 93, 94 AB00 1604 17, 53, 72, 74, 75, 77, 79, 84, 88, 89, 90, 92, 93, 97 AB00 1605 00, 01, 05, 07, 11, 12, 13, 15, 16, 20, 23, 24, 26, 28, 30, 31, 35, 37, 39, 42, 44, 46, 48, 50, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 74, 75, 76, 77, 78, 80, 82, 84, 86, 87, 89, 91, 93, 95, 96, 97, 98, 99 AB00 1606 00, 01, 02, 03, 04, 05, 06, 08, 09, 10, 12, 15, 19, 20, 21, 23, 24, 28, 31, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 77, 79, 80, 81, 82, 83, 84, 85, 87, 89, 91, 92, 94, 96, 99 AB00 1607 01, 02, 03, 04, 05, 06, 08, 09, 10, 12, 14, 15, 16, 18, 21 AB00 1625 27, 68 AB00 1626 60, 61, 62, 78, 80, 82, 84, 86 AB00 1631 03, 04, 10 AB00 1644 07, 08, 09 AB00 1649 30 AB00 1651 74, 75, 76, 77 AB00 1667 46 AB00 1697 40, 41 AB00 1734 28, 30, 32, 35, 37, 53, 60, 62, 63, 64, 66, 67, 68, 69, 70, 83 AB00 1735 77 AB00 1736 63, 65, 67, 69, 72, 74 AB00 1737 16, 17, 18, 19, 20, 26, 27 AB00 1738 0j0, 36, 37, 38, 40, 41 AB00 1739 87 AB00 1800 43, 44 AB00 1804 17 AB00 1969 45, 46, 47, 48 GOAP 00064 64, 65 GOAP 00070 88, 89, 91, 94, 95, 96 GOAP 00071 04, 08, 11, 12, 13, 15, 21, 22, 23, 31, 34, 36, 38, 49, 55, 61, 62, 75, 80, 83, 85, 93, 94 GOAP 00072 07, 08, 09, 11, 25, 41, 45, 50, 51, 52, 53, 56, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 74 GOAP 00077 25 GOAP 00112 12 GOAP 00113 67 GOAP 00116 53 GOAP 00117 59 GOAP 00120 93 GOAP 00129 55 GOAP 00130 41, 49 GOAP 00131 10 GOAP 00136 36 GOAP 00137 09, 11, 14, 15, 16, 17 19 Dated at the City of Edmonton, Alberta this 28 th day of October, 2021.

W.S. Schlosser M.C.Q.B.A.

Appearances: Kenneth Fitz and Sean Parker McLennan Ross LLP for the Applicants, Cherokee Canada Inc and 1510837 Alberta Ltd. Joshua Jantzi and Emily McCartney Gowling WLG (Canada) LLP for the Defendant, Her Majesty the Queen in Right of Alberta and Micheal Aiton