Brookdale International v Crescent Point Energy, 2023 ABKB 120

Court of King’s Bench of Alberta Citation: Brookdale International v Crescent Point Energy 2023 ABKB 120 Date: Docket: 1501 07942 Registry: Calgary Between: Brookdale International Partners, L.P. by its general partner BIP GP LLC and Brookdale Global Opportunity Fund Plaintiff/Respondent - and - Crescent Point Energy Corp. and Legacy Oil + Gas Inc. Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Justice K.M.

Horner _______________________________________________________ Introduction [ 1 ] The within application concerns undertakings and objections at questioning.

The main action is a ‘fair value’ claim under Alberta’s Business Corporations Act , RSA 2000, c B-9 ( ABCA ), wherein the Plaintiffs, Brookdale International Partners, LP by its general partner BIP GIP LLC (Brookdale International) and Brookdale Global Opportunity Fund (Brookdale Global) (jointly referred to as the Plaintiffs, Brookdale or the Brookdale Entities), are seeking judicial determination of the fair value of their shares in the Defendants, Crescent Point Energy Corp. (“Crescent Point”) and Legacy Oil + Gas Inc (“Legacy”). [ 2 ] On June 21, 2022, Brookdale’s corporate representative, Mr.

William Michael Garrity IV, was questioned by the Defendants. Mr. Garrity is employed by Weiss Asset Management LP (“Weiss”) through its general partner WAM GP LLP (“WAM”). Pursuant to Investment Management Agreements, Weiss is the Investment Manager for the Brookdale Entities. [ 3 ] During the questioning of Mr. Garrity, Brookdale’s counsel objected to certain questions and refused certain undertakings requested.

[ 4 ] Legacy submits that the Plaintiffs’ objections and refusals are improper, and that the Plaintiffs should be compelled to answer the questions and provide the undertakings sought. [ 5 ] Brookdale opposes the within application, arguing that the questions and related undertakings seek to obtain evidence on which the Plaintiffs may rely on at trial, rather than facts that are independently known by the Plaintiffs. They maintain that the objections and refusals are appropriate.

Procedural History and Nature of the Claim [ 6 ] In July 2015, Brookdale International and Brookdale Global commenced proceedings against Crescent Point and Legacy via Originating Application seeking the judicial determination of the “fair value” of their Legacy shares pursuant to s. 191 of the ABCA . This followed Legacy accepting an offer from Crescent Point in May 2015 and entering into a court approved Plan of Arrangement whereby all of the shares of Legacy were exchanged for shares in Crescent Point.

Brookdale filed a dissent in accordance with the court order approving the sale. [ 7 ] Subsequently pleadings were filed, with Brookdale filing a Statement of Claim in April 2017, Legacy filing a Statement of Defence in May 2017, and Brookdale filing a Reply in June 2017. [ 8 ] Extensive discovery has taken place over the years since the pleadings were filed.

Counsels’ submissions suggest that there is no dispute on the fundamental issue of entitlement to be paid fair value of the shares, and that determination of fair value will largely turn upon expert evidence. [ 9 ] Legacy submits that Brookdale’s Statement of Claim pleads the determination of fair value, but added at paragraphs 6 though 8 of the Statement of Claim “significantly new allegations impugning the judgment and conduct of Legacy, its board of directors and their independent advisors”. Further allegations were added in the Reply.

Legacy submits that these allegations raise new areas of proper questioning. They argue that Brookdale’s corporate representative refused to answer basic questions about “generalized but very serious allegations” that are set out in the pleadings. [ 10 ] Brookdale takes the position that the Defendants’ application seeks to compel Mr. Garrity to review all the evidence which the Plaintiffs’ obtained through their discovery of the Defendants and to advise which of that evidence they intend to rely on.

They submit that in this type of claim, there is “a natural asymmetry as to the evidence possessed by the Plaintiffs than that possessed by the Defendants”. This asymmetry arises as the Plaintiffs, while knowing that they owned shares and dissented, would not have independent knowledge of their own account of the facts relevant to the live issues set out in the pleadings. The crux of their position in opposing this application is that while the Plaintiffs are required to provide the facts they know of their own account, they are not required to provide evidence of how they will prove their case.

Issue [ 11 ] The within application deals with the permitted scope of questions at questioning. The questions seek information generally in two main categories: (

a) questions concerning background and witness information about the Plaintiffs; and (

b) questions about the pleadings. Overview of Legal Principles [ 12 ] Disclosure has numerous defined and important purposes as outlined at

Part 5 of the Alberta Rules of Court Disclosure of Information: (

a) to obtain evidence that will be relied on in the action; (

b) to narrow and define the issues between the parties; (

c) to encourage early disclosure of facts and records; (

d) to facilitate evaluation of the parties’ positions and, if possible, resolution of issues in dispute; and (

e) to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them. [rule 5.1] [ 13 ] Wesley First Nation v Alberta , 2013 ABQB 344 (aff’d 2015 ABCA 76 ) at paragraph 12 describes the many functions fulfilled by questioning and discovery that are recognized in the case law: Case law also recognizes that many functions fulfilled by questioning and discovery include obtaining admissions, facilitating the proof of the matters at issue between parties, and obtaining full and fair disclosure.

Discovery also assists the examining party in finding out what case the party has to meet, allowing parties to assess the merits of their own and the opponent’s position, defining issues early in the proceedings, determining facts relied on in support of that case, limiting the generality of the pleadings and avoiding parties being taken by surprise at trial. [citations omitted]

[14] In Ironside v Wong, 2003 ABQB 161 at paragraph 21, the Court stated that the purpose of questioning is to allow theopposing party to learn the case to be met, to narrow the issues to be dealt with at trial, to prevent surprise at trial, and to allow parties toassess the strengths and weaknesses of the case. [15] A person is only required to answer questions that are relevant and material, and questions in respect of which an objection isnot upheld under rule 5.25(2). [16] Rule 5.2 sets out when something is relevant and material: When something is relevant and material 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 therecord 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 thepleadings.

(2) The disclosure or production of a record under this Division is not, by reason of that fact alone, to be considered as an agreement oracknowledgment that the record is admissible or relevant and material. [17] The pleadings are the starting point for determining relevance and materiality, along with the context and nature of the claim:Mustard v Brache, 2006 ABCA 265 at para 10; Wesley at para 21.

Discovery of records is confined to eliciting facts of primaryrelevance, i.e., facts that are directly in issue, or of secondary relevance, i.e., facts from which the existence of the primary facts may bedirectly inferred.

Both primary and secondary relevance are determined by reference to the issues raised by the pleadings: Mustard atpara 11. [18] In Geophysical Service Incorporated v NWest Energy Corp, 2017 ABQB 232, Justice Nixon held that rule 5.2 should beconstrued narrowly, with information being disclosed only if it would significantly help determine the issues raised in the pleadings.Where relevance is determined by the pleadings, materiality is more a matter of proof: Geophysical at para 24. [19] Counsel may object to questions posed by examining counsel, with rule 5.25 setting out the parameters for appropriatequestions and objections.

A party or a witness being questioned may object to an oral or written question during questioning but only forone or more of the following reasons: (

a) privilege; (

b) the question is not relevant and material; (

c) the question is unreasonable or unnecessary; or (

d) any other ground recognized at law. [20] Valid objections subsumed under “other grounds recognized by law” include: questions of expert opinion; questions of law ormixed fact and law, or the legal

interpretation of documents; questions that ask a witness to interpret a document they did not author;questions that require the witness to hypothesize, speculate or reach conclusions; and, questions that offend the rules of privilege: Wesleyat para 17. [21] In Weatherill Estate v Weatherill, 2003 ABQB 69, Justice Slatter espoused a pragmatic view of the scope of discovery. Ininterpreting the Rules as they then were, he indicated that the court should avoid creating an artificial situation where a litigant is notentitled to obtain information on discovery which the litigant could clearly introduce at trial.

Through objections, limits are placed onwhat questions may be asked to avoid abusive, excessive and unnecessarily expensive questioning, not to prevent legitimate lines ofinquiry: ...In deciding whether a particular document is material, one must take a very pragmatic view, viewing the situation from the perspectiveof the party who must prove the fact in question. At an interlocutory stage of proceedings, the Court should not measure counsel’sproposed line of argument too finely; if counsel can disclose a rational strategy in which the disputed document plays a material part, thatshould be sufficient.

Again it must be remembered that the purpose of the Rule was to avoid abusive, excessive, and unnecessarilyexpensive discovery, not to cut off legitimate lines of inquiry. [Weatherill at para 16] [22] A further limit on questioning requires a distinction between facts and evidence. Facts, which enable a party to know what thecase is, are discoverable.

Evidence, which enables a party to know how the case will be proved, is not: see Can-Air Services Ltd vBritish Aviation Insurance Co, 1988 ABCA 341; Millott Estate v Reinhard, (2000) (AB KB), 84 Alta LR (3d) 387,2000 CarswellAlta 704 at para 28. [23] In Can-Air the issue before the court was whether a party examined for discovery may be asked the facts on which he reliesfor part of his pleading. Justice Côté held that questioning “may seek facts only, not argument”: Can-Air at para 7.

If a pleading isunclear, the remedy is to ask the lawyer who wrote it to clarify it, either informationally or formally through a motion to amend or strikeout or give further particulars: Can-Air at para 14. The Court disallowed questions framed as “upon what facts do you rely for para. x ofyour pleading”, stating that it was always improper because it requires a witness to select facts, thus becoming an inquiry into evidence. [24] In Millott Estate, the defendants sought to compel the plaintiffs to provide facts relevant to the allegations of negligence plead

in the Amended Statement of Claim relating to a motor vehicle collision. The plaintiffs argued that the “facts” sought were actuallyevidence, outside the plaintiffs’ knowledge, and that the only possible source from which the plaintiffs could inform themselves isprivileged information.

The defendants acknowledged that the plaintiffs had no personal knowledge of the collision because they werenot present at the accident, and tragically, the only person on the plaintiffs’ side who would have had personal knowledge was deceased:Millott at para 26. [25] Millott discusses what facts a plaintiff must properly inform themselves of, relying on the principles set out in Can-Air.Plaintiffs do not need to inform themselves of facts that are otherwise privileged: Millott at para 22. Distinguishing between privilegedand non-privileged facts becomes the important determination.

Justice Moore cited Blair v Wawanesa Mutual Insurance Co et al(1997), 1997 ABCA 338 , 209 AR 81: Facts, not otherwise privileged, are those facts that a party knows of on its own account, in the ordinary course of affairs or from its owninvolvement in the events which are the subject matter of the dispute.

The facts acquired by counsel or agents, acting on behalf ofcounsel (in this case documents and reports obtained or authored by the insurance adjuster and the private investigator and counsel) arenot discoverable because they are covered by the litigation privilege, i.e. they are facts which are otherwise privileged. [26] At paragraph 30, Millott summarizes the key principles relating to discovery of facts versus evidence: ...Once a party has a certain amount of information regarding a pleading, the search for more facts becomes a thinly-disguised quest forevidence.

If the plaintiffs were forced to disclose all the facts they had learned from all witnesses and investigations, the defendantwould have fairly complete knowledge of how the plaintiffs plan to prove their case. [27] Facts enable a party to know what the case is, whereas evidence enables a party to know how the case will be proved: Millottat para 28. In Millot, Justice Moore held that the facts sought by the defendants were actually evidence in that they would indicate howthe plaintiffs would prove its case. Documents available to both parties had information giving a basis for each of the negligenceallegations.

Further, the facts sought by the defendants related to the actions of the defendants, and were necessarily fully known to thedefendants: Millott at para 31. [28] In Tolko Industries Ltd v RailLink Ltd, 2003 ABQB 349, Justice Slatter considered the permissible scope of questions atdiscovery. One of the issues arose from questions relating to the pleadings.

The format of the two questions in Tolko was “Providewhatever information Tolko has that relates to the [allegations in paragraph of the pleadings].” Justice Slatter held that the Plaintiff wasjustified in refusing to give these two undertakings because it was a single compendious question about all the detailed allegations in thespecific paragraph of the pleadings, rather than a question of fact about particular allegations in the Statement of Claim: Tolko at paras22, 26-28. [29] These general principles outlined above guide my analysis of the within application.

Application of the Principles to the Facts [30] The objections and undertakings can be divided into two general categories: (

a) objections concerning background andwitness information about the Plaintiffs, and (

b) objections and undertakings related to the pleadings. [31] At the hearing, Legacy withdrew its request for Undertakings 11, 12, 13 and 15. These are not considered in the analysisbelow. A. Objections concerning basic background and witness information about thePlaintiffs, and basic details about the Plaintiff’s Investment in Legacy i. Objections 1, 2, 3, 4 [32] The following four questions requesting the names of various directors and officers of the Plaintiff corporations, and of anassociated non-party corporation were objected to: Objection 1: And who are the directors of BIP?

Objection 2: And who are the directors and officers of Brookdale Global? Objection 3: Who are the directors and officers of WAM? Objection 4: There’s been a refusal to tell me who the president is. Will you tell me who the managing directors are? [33] Legacy submits that the Plaintiffs are refusing to provide information about possible witnesses within their companies orrelated entities. They state that they are simply asking for names, and it would be pragmatic to provide answers to Objections 1 2, 3 and4.

They rely on Loos, O’Keefe, Ruckaber, Bothwell, Williams, Sprentz, Enns and Reeves v Leader-Post Ltd and Williams, 12 ACWS(2d) 321, 12 Sask R 195 [Leader-Post], in particular, paragraph 5: ... a party examined for discovery may not refuse to give the names of employees who have personal knowledge touching the questionsat issue acquired by virtue of that employment. [34] Leader-Post was an action for libel against the defendants in respect of a publication in the defendant’s newspaper.

Theplaintiffs brought an application to compel the defendant Williams, the editor of the newspaper, to answer certain questions refused at

Questioning. Mr. Williams refused to provide the identity of the person who wrote the article, the identity of the person who obtainedthe information directly from a Mr. Robbins (which was the basis for the article), and the identity of the person who wrote the story. TheCourt compelled Mr. Williams to provide the identity of the persons in question because the identity of the reporter(

s) who wrote thestories was a substantial part of a material fact disputed by the defendants: Leader-Post at para 7. [35] Legacy also relies on Wray v Schwartz, (AB KB), [1981]119 DLR (3d) 489, citing it for the propositionthat “the defendants are clearly entitled as of right, to examine for discovery those employees of the plaintiff who have knowledge andthe defendants are not required to rely on the information of the officer as to what the employees said or did.”: Wray at para 5.

In thatcase, the applicants sought the names of employees of the plaintiff corporation “who in the course of their employment performedcertain functions and made certain decisions relevant to the issues raised in the proceedings”. Counsel for the plaintiff objected to the“disclosure of names of the employees who undoubtedly had personal “knowledge touching the questions at issue acquired by virtue ofthat employment”: Wray at para 4.

Relying on then rule 200(1) (which is similar to current rule 5.17(1)(d)), the Court directed that thecorporate officer of the plaintiff re-attend and provide the names of the employees requested. [36] A distinguishing factor is that the former rule 200(1) referred to “touching the matters in question”, whereas our current ruleshave narrowed the scope of relevance and materiality, as was pointed out by Justice Nixon in Geophysical. [37] Rule 5.17(1)(

d) provides: 5.17(1) A party is entitled to ask the following persons questions under oath about relevant and material records and relevant andmaterial information: ... (

d) one or more other persons who are or were employees of the party adverse in interest who have or appear to have relevant andmaterial information that was acquired because of the employment. [38] The basis for Brookdale’s objection is that no foundation has been laid for why or how the identification of the officers anddirectors of the Brookdale entities or WAM, or the managing directors of Weiss, would or could possibly be relevant or material to thedetermination of any of the remaining live issues in the action.

They state that there is no evidence that these individuals have anypersonal or independent knowledge that is relevant and material. They raise a further concern that providing these names could result inrequests to conduct questioning of individuals with no knowledge. [39] I direct that Brookdale provide answers to the questions resulting in Objections 1, 2, 3, and 4, and am guided by the commentsin Weatherill wherein the court cautions applying a too formalistic approach to the rules.

Where pragmatic counsel is called upon toproduce a document which is arguably irrelevant, or at least not materially relevant, if the document is truly harmless, the pragmaticcounsel will produce it rather than fight over it: Weatherill at para 13. In this case, Legacy has requested the names of various directorsand officers of the plaintiff corporations. In my view, these are foundational questions and a pragmatic approach is warranted.

Withrespect to Brookdale’s concern regarding requests to question individuals without knowledge, simply providing the names of theseindividuals does not require Brookdale to produce said individuals for questioning. Pursuant to rule 5.17(1)(d), only individuals whohave or appear to have relevant and material information may be questioned. Should such a request to question arise, Legacy must ensureits request complies with the Alberta Rules of Court and Brookdale has recourse available through them. [40] As such, I direct that Brookdale provide answers to the questions resulting in Objections 1, 2, 3 and 4. ii.

Objection 19 [41] Counsel for Brookdale objected to the following question: Objection 19: Now, if you are not an employee, officer, or director of Weiss or WAM, can you tell me how you believe that you haveauthority to give evidence that binds the plaintiffs? [42] Legacy wants to know how Mr. Garrity, who does not work for the Plaintiffs, came to be the corporate representative. Theyargue that this information is necessary to understand who is being questioned and whether it may be necessary or important to questionother individuals, given that Mr.

Garrity is not an employee of the Brookdale Entities, and it is unclear how he came to have authority tobind those entities. Legacy agrees with Brookdale that Legacy has not challenged Mr. Garrity’s position as corporate representative.However, they submit that this does not mean that Legacy is then precluded from asking information about Mr. Garrity’s position ascorporate representative. [43] Brookdale objects to the question on the basis that Mr. Garrity is not required to give a legal opinion on the source of hisauthority to be the Plaintiffs’ corporate representative.

They state that no rule requires the corporate representative to be an employee ofthe party. Rule 5.4 states that a corporate party can choose its own corporate representative and the evidence of the corporaterepresentative is the evidence of the corporation. [44] Brookdale also relies on what they describe as a “failed argument” advanced by Legacy before the Court of Appeal: seeBrookdale International Partners, L.P. v Crescent Point Energy Corp., 2018 ABCA 221 [Brookdale ABCA]. In Brookdale ABCA atparagraph 41 in reference to the chambers judge’s concerns about the authority of Mr.

Garrity to give evidence, the Court stated “Anyperson is presumed to be a competent and compellable witness, and does not need “authority” to give relevant evidence: AlbertaEvidence Act, RSA 2000, c. A-18, ss. 3-4.” [45] Brookdale further asserts that the information Legacy seeks can be found in the Investment Management Agreements (IMAs)between Weiss and the Brookdale Entities. Mr.

Garrity’s evidence at questioning is that he is employed by Weiss as an investmentanalyst, and that investment decisions for the Brookdale Entities are made through a contractual relationship with Weiss, through itsgeneral partner WAM.

Section 7 of the IMA between Weiss and Brookdale Global provides Weiss with the power to act on behalf of and

exercise all rights of the company, similar to the powers set out in the IMA between Weiss and Brookdale International (Tab 2 of the Evidence Book). Legacy states that this is a partial answer, but seeks to have Brookdale point out the portions of the IMAs that give Mr. Garrity his authority. [ 46 ] In my view, the question resulting in Objection 19 as stated is not permissible. Firstly, based on the materials before me, there appears to be confusion regarding Mr. Garrity’s employment. The question resulting in Objection 19 indicates that Mr. Garrity is not an employee, officer or director of Weiss or WAM. Legacy’s brief at page 8 paragraph 25(

e) states that Mr. Garrity is an employee of WAM GP LLP. Tab 3 of the Evidence book includes an excerpt from questioning of Mr. Garrity on October 1, 2015 wherein he confirms under oath that he is an employee of Weiss Asset Management LP (page 8, line 3-5), that he speaks “on behalf of Weiss Asset Management, the investment manager of Brookdale – of the Brookdale funds” (page 8, line 13-15), and that Weiss Asset Management LP, as investment advisor of the Brookdale Funds, the role is pursuant to a contract (page 8 lines 16-27, page 9, line 1). The excerpts from questioning of Mr.

Garrity on June 21, 2022 at Tab 6 of the Evidence Book confirms that Mr. Garrity answered under oath that he is an employee of Weiss Asset Management LP, not an employee of WAM (page 12, lines 21-24). In my opinion, this needs to be clarified in the question resulting in Objection 19. [ 47 ] Secondly, the term “authority” lends towards Mr. Garrity opining on a question of law (i.e. what is your legal authority to be a corporate representative for Brookdale). As previously stated, questions of law are not permissible.

Rule 5.4 requires that every corporation that is a party must appoint a corporate representative and their evidence is evidence given by the corporation: rule 5.4(1) and (3). Rule 5.4(6) allows the Court to appoint an additional or a substitute corporate representative for a party that is a corporation if the appointed corporate representative is not suitable, or has failed to inform himself or herself of relevant and material records. No such application is before me, and Legacy, as stated above, has not challenged Mr.

Garrity as corporate representative. [ 48 ] However, this does not equate to Legacy being precluded from asking questions about Mr. Garrity and his role. As will be seen in these reasons, a corporate representative has an obligation to inform him or herself of the issues between the parties, and in this case, Mr. Garrity’s link or connection to the Plaintiffs is central. In my view, Legacy is entitled to understand the connection between Mr. Garrity and the Plaintiffs.

As such, the question could be rephrased as follows: Are you relying on the IMAs for your connection to Brookdale to appear as their corporate officer? If Brookdale is relying on certain portions of the IMAs, I agree that it would be pragmatic to indicate the specific portions relied upon, as it appears they have done in their Brief. [ 49 ] Accordingly, while I dismiss Legacy’s application with respect to Objection 19, Legacy is permitted to rephrase the question in accordance with the reasons set out above and put it to Mr. Garrity. iii. Objection 6 [ 50 ] During questioning, Legacy put to Mr.

Garrity a document taken from Weiss’ website, and asked him the following question, to which Brookdale objected: Objection 6: This is a public document published by Weiss concerning its operations and expertise, is that fair? [ 51 ] In their Brief, Legacy states that they “seek to pragmatically explore some foundation facts about the litigants to this action but have been entirely stonewalled in that regard.” They submit that Weiss, on behalf of Brookdale, “is impugning the business judgment of the Legacy board and its financial advisors.” At the hearing, Legacy’s counsel submitted that the question was purely a ‘know your witness’ question. [ 52 ] Brookdale objects on the basis that the content from Weiss’ website in 2022 is not relevant to a matter arising in 2015, and that Weiss’ operations, its business and its expertise are not an issue in the action.

I agree with Brookdale. Weiss is not a litigant in the action. While true that Weiss is the investment manager on behalf of Brookdale, and it may have been pragmatic to answer this question, I fail to see how the information sought from this question is relevant or material to the fair value claim. In my view, Brookdale’s objection is proper and I dismiss Legacy’s application with respect to Objection 6. iv. Objections 23 and 24 [ 53 ] Brookdale objected to the following questions: Objection 23: Now, on what date in April 2015 was Weiss’s first investment made in Legacy?

Objection 24: Weiss’s second investment was made on May 28 th , 2015, right? [ 54 ] Legacy submits that these are basic questions about the Plaintiff’s investment in Legacy. They refer to paragraph 3 of the Statement of Claim wherein the Plaintiffs alleged that the Brookdale Entities were registered shareholders of Legacy with respect to the following shares[...], with Brookdale International allegedly having held 5,652,594 shares and Brookdale Global allegedly having held 2,308,806 shares – the ownership of which would entitle the Plaintiffs to fair value.

Legacy submits that the Defendants should be entitled to build a foundational record of the exact same nature through the Plaintiff’s corporate representative, indicating that when its corporate representative was asked questions of a similar nature, it answered the undertakings without objection and provided additional information upon request. Legacy further states that the date on which the Brookdale Entities invested in Legacy is necessary because Brookdale seeks extraordinary prejudgment interest. [ 55 ] Brookdale states that the date on which the Plaintiffs purchased shares is irrelevant and immaterial.

It is not in dispute that Brookdale Entities were shareholders on June 30, 2015, and thus entitled to remedies pursuant to the ABCA . Brookdale relies on the Alberta Court of Appeal decision Brookdale ABCA wherein the Court stated at paragraphs 26:

[26] ...Investors make their own decisions on the merits of investments, and are entitled to buy securities they think will increase in value, for whatever reason...any form of transaction is presumptively legitimate. [ 56 ] At paragraph 28, the Court of Appeal held: [28] It follows that it was an error in principle to treat the appellants differently because they bought shares immediately before the Plan of Arrangement was announced, and immediately thereafter but before the Plan of Arrangement closed.

Investing in anticipation of future events, or in anticipation of the effects of announced changes in the issuer, is a legitimate form of investment. Further, there are not different levels of rights to dissent, because the ABCA does not distinguish between different classes of investors...All are bound by the ABCA , and entitled to the remedies set out in it. [ 57 ] While it would have been pragmatic on the part of counsel to simply provide answers to Objections 23 and 24, I agree with Brookdale that the date that Brookdale bought the shares is irrelevant.

It is not disputed that Brookdale owned certain shares at the material time that entitles it to the remedies set out in the ABCA , and in particular s. 191 . As such, I dismiss Legacy’s application with respect to Objections 23 and 24. As for prejudgment interest sought by Brookdale, the time frame is clearly set out in the Statement of Claim at paragraph 30(c): as from June 29, 2015 until the date on which the Amount is paid. B.

Objections related to the pleadings [ 58 ] Brookdale takes the position that Legacy continues to seek answers to questions about topics which the Plaintiffs do not have any independent knowledge of. Their position is that to the extent the Plaintiffs have knowledge of the “facts” that Legacy seeks, this knowledge is from obtaining evidence through the discovery of the Defendants or other means covered by privilege. They submit that the facts sought by Legacy are almost entirely facts only they themselves have knowledge of.

Brookdale points to the excerpts from Questioning at Tab 6 of the Evidence book to demonstrate that Mr. Garrity as corporate representative and Plaintiffs have limited to no personal knowledge of certain events and matters raised in the pleadings. [ 59 ] Legacy submits that it is at liberty to ask questions of fact about particular allegations in the Statement of Claim, relying in Can-Air and Tolko Industries , 2003 ABQB 349 .

Legacy states that it is not seeking the Plaintiff’s strategy, evidence or legal opinions; it asked “discrete questions about discrete factual claims in the Statement of Claim.” [ 60 ] In Tolko , the question in dispute was phrased as “provide whatever information Tolko has that relates to certain allegations...”. At paragraph 27, the Court stated: The Defendant is perfectly at liberty to ask questions of fact about particular allegations in the Statement of Claim. For example, the Defendant could ask for all the facts known by the officer about the presence of dead grass on the right of way.

However to ask a single compendious question about all of the detailed allegations in para. 18 of the Statement of Claim goes too far. [ 61 ] While true that Legacy has not asked their questions about the pleadings in a single compendious question, the real issue is that the facts and information that they seek from the question are not within Mr. Garrity’s knowledge or in respect of which he otherwise has a duty to inform himself. [ 62 ] The duty of a corporate representative to inform themselves on matters outside of their control is relevant here.

An individual examined for discovery must only inform themselves on matters within the knowledge of anyone under their control, including employees and agents. There is no obligation to attest to information outside their knowledge, or to inform themselves on matters outside their control: Real Estate Council of Alberta v Moser , 2019 ABQB 106 at para 8 , citing Wright v Schultz , 1992 ABCA 305 . i. Paragraph 7 of the Statement of Claim [ 63 ] Undertakings 6, 7, 8, 9, 10 and Objections 79, 80, 59, 60 relate to paragraph 7 of the Statement of Claim: 7.

While the Asset Sale process was still ongoing and generating competitive asset bids, Legacy changed course and refocused the Process on achieving a corporate transaction in respect of the whole of the company (a “Corporate Transaction”).

From this point forward, Legacy only considered a Corporate Transaction with Crescent Point to the exclusion of other alternatives, including an Asset Sale or a Corporate Transaction with different counterparty, and it did so in a time-limited way. [ 64 ] The Undertakings and Objections related to paragraph 7 of the Statement of Claim are set out here below: Undertaking 6: To identify in the production and give the facts within Mr.

Garrity’s knowledge or in respect of which he has an obligation to inform himself regarding the allegation that there were competitive asset bids [including identifying the bids] Undertaking 7: To identify the competitive asset bids alleged generically in paragraph 7 of the statement of claim, and to provide the facts within Mr. Garrity’s knowledge or in respect of which he has an obligation to inform himself that they were competitive bids, and to advise why Undertaking 8: To advise of all the facts within Mr.

Garrity’s knowledge or in respect he has an obligation to inform himself in support of the allegation that Legacy as a matter of fact changed course and refocused its process on achieving a corporate transaction Undertaking 9: To advise of all the facts within Mr. Garrity’s knowledge or in respect he has an obligation to inform himself that from that point forward, Legacy only considered a corporate transaction with Crescent Point to the exclusion of other alternatives, including identifying those alternatives Undertaking 10: To disclose all the facts and the knowledge of Mr.

Garrity as corporate representative or in respect of which he has an obligation to inform himself that this was done in a time-limited way, as alleged in paragraph 7

Objection 80: Mr. Garrity, what does it mean by “a time limited way” in the end of paragraph 7? Objection 79: It says: (as read) “Only considered a corporate transaction with Crescent Point to the exclusion of other alternatives.”Now, with that clarification, Mr. Garrity, you will recall this morning that we saw the financial advisors and Legacy considering theYanchang expression of interest in parallel with considering the Crescent Point offer. In fact, they compared the pros and cons, didn’tthey?

Objection 59: Are the plaintiffs – do the plaintiffs have any information or belief that there was ever any kind of offer made to buy aLegacy asset or to buy Legacy, the company, that was made, in fact, and that was rejected by Legacy but should have been accepted?

Objection 60: Do the plaintiffs know or believe that there was an offer to buy the company Legacy that was rejected by Legacy? [65] Legacy argues that through Undertakings 6, 7 and 8 it is “rightfully seeking to close the doors in terms of any factual evidencethat the Plaintiffs may seek to tender at trial.” They want to know what the competitive bids were. They submit that Undertakings 9 and10, and Objection 80, address the allegations in paragraph 7 of the Statement of Claim that Legacy considered a “corporate transaction”with Crescent point to the exclusion of alternatives “in a time limited way”.

They want to know what these alternatives are and do notwant to be surprised. [66] Brookdale’s position with respect to Undertakings 6, 7, 8, 9 and 10 is that Mr. Garrity has expressly advised, as evidenced inthe Undertaking responses provided at Tab 5 of the Evidence Book, that “neither he nor others within the Plaintiffs have independentknowledge of: (

a) the Process or factors considered or acted on by Legacy in carrying out the Process; (

b) what asset bids, competitive bids or otherwise, were received by Legacy as part of the Process; (

c) the allegation that Legacy changed course and refocussed the Process on achieving a corporate transaction; (

d) the allegation that Legacy only considered a corporate transaction with Crescent Point to the exclusion of other alternatives; and (

e) the allegation that Legacy only considered a corporate transaction with Crescent Point in a time-limited way.” [67] They submit that these questions seek evidence that the Plaintiff’s have learned from the Defendants which the Plaintiffs’may rely on with respect to the allegations. [68] Tab 5 of the Evidence book sets out the Answers to Undertakings provided by Brookdale. The Answers for Undertakings 6, 7,8, 9 and 10 follow the same general format: Answer: To the extent that the question goes beyond a request for facts that Mr.

Garrity, or others in the Brookdale Entities, know oftheir own account, or asks for evidence in support of a fact or how the Brookdale Entities propose to prove a fact, or for privilegedinformation, the Undertaking is refused. However, Mr. Garrity advises that to the best of his information and knowledge neither he norothers within the Brookdale Entities have independent knowledge of what asset bids were received by Legacy as a part of that process. [69] The final sentence for Undertakings 8, 9 and 10 reads: Answer: [...] However, Mr.

Garrity advises that to the best of his information and knowledge neither he nor others within the BrookdaleEntities have independent knowledge of the process followed by Legacy. Mr. Garrity did review the Circular provided by Legacy thatdoes speak to Legacy’s description of the process. [70] The Undertaking responses as set out in the Evidence Book demonstrate that the Plaintiffs have advised that Mr. Garrity, norothers within the Plaintiffs, have independent knowledge that would allow Mr. Garrity to answer the questions sought by Legacy.

Asoutlined above, a corporate representative has no obligation to attest to information outside their knowledge, or to inform themselves onmatters outside their control. Mr. Garrity is not required to review the evidence of others and provide an answer. The facts sought are notknown to Mr. Garrity or others within the Plaintiffs in the ordinary course or from their own involvement. In my view, this is a responseto the information sought by Legacy. Millott at paragraph 30 speaks to this very issue. Plaintiffs are not required to disclose all the factsthey have learned from all witnesses and investigations.

It is limited to the facts that is within the ordinary course or from their ownpersonal knowledge. [71] While it is possible that the Plaintiffs have knowledge of certain facts regarding the information sought by Legacy, if thesefacts are not ones that Mr.

Garrity or others within the Plaintiffs knows of on its own account, in the ordinary course of affairs or from itsown involvement in the events which are the subject matter of the dispute, but are instead facts learned through the evidence of theDefendants or acquired by counsel, these facts are not discoverable: see Millott, citing Blair v Wawanesa Mutual Co et al (2000), 2000ABQB 447 , 265 AR 50 at para 25. [72] Further, Undertakings 6 and 7 refer to “competitive asset bids”, and I am of the view that whether the asset bids werecompetitive calls for opinion evidence.

That said, while it is not proper for Legacy to ask what asset bids were competitive, they areentitled to know generally about the asset bids referred to in Brookdale’s statement of claim. As such, with respect to Undertaking 7, thequestion can be rephrased to ask Brookdale to identify the asset bids within Mr. Garrity’s knowledge as corporate representative or inrespect of which he has an obligation to inform himself occurring during the Asset Sale process. I note that counsel for Brookdale hasoffered for Legacy to identify all offers and bids received by Legacy and that Brookdale would subsequently have Mr.

Garrity advisewhether he is aware of any other offers or bids. I leave it to Legacy to determine whether they wish to pursue this approach. [73] With respect to both Objections 59 and 60, Legacy submits that it is “entitled to explore this line of questioning generally”,and that Brookdale “must now identify any alleged specific offers that were made and rejected by Legacy”. As in Blair and Millott, the

facts sought by Legacy relate to the actions of Legacy itself – whether there was or were offers to buy Legacy that Legacy rejected is information that Legacy would have. Brookdale submits that the question of whether there were other alternatives calls for expert opinion and thus is improper, and if the question relates to what offers or bids Legacy received, then the knowledge is something Legacy itself has. In my view, Objections 59 and 60 are proper. [ 74 ] With respect to Objection 79, Legacy submits that the question was put to Mr. Garrity along with a document that in their view contradicted the pleadings.

Brookdale argues that the question is factually incorrect and misleading due to the use of the word “parallel”. It submits that Crescent Point made an offer on May 12, but the Yanchang offer was not received in writing until May 13, thus the offers were not considered in parallel and the question is misleading. I direct that with respect to Objection 79, the question shall be rephrased to remove the words “in parallel”, can be rephrased to include terms such as ‘entertaining the offers at the same time’ and may be put to Mr. Garrity for an answer. It may well be that Mr.

Garrity’s answer is that neither he nor others in the Brookdale Entities have independent knowledge, but does not mean that Legacy is not entitled to put the question to him. [ 75 ] Therefore, I dismiss Legacy’s application with respect to Undertakings 6, 8, 9 and 10 and Objections 59, 60 and 80. With respect to Undertaking 7 and Objection 79, the respective questions shall be rephrased as outlined above and shall be put to Mr. Garrity to answer. ii. Paragraph 8 of the Statement of Claim [ 76 ] Undertakings 14, 16, Objections 81 and 86 relate to paragraph 8 of the Statement of Claim: 8.

The Process, as followed by Legacy, failed to provide fair value for shareholders of Legacy, including Brookdale International and Brookdale Global. In particular, but without limitation, Legacy and its officers, directors, employees and Advisors: (

a) Failed to allow sufficient time for the Asset Sale to unfold and maximize value through the sale of assets; (

b) Failed to conduct a process that would provide fair value, whether through an Asset Sale, Corporate Transaction or otherwise; (

c) Negotiated a Corporate Transaction with Crescent Point that did not provide fair value and prejudiced the ability of Legacy to obtain fair value for its shareholders; (

d) During the Process, acted on factors not consistent with obtaining fair value, including: (

i) Concerns related to an activist shareholder; (ii) Negotiation of severance and other entitlements as part of a Corporate Transaction with Crescent Point; (iii) Avoiding further scrutiny related to guaranteeing a personal loan in favour of Legacy’s CEO; and (iv) Such other factors as are within the knowledge of Legacy and its officers, directors, employees and Advisors. [ 77 ] The Undertakings and Objections are as follows: Undertaking 14: To disclose all the facts and the knowledge of Mr.

Garrity as corporate representative or in respect of which he has an obligation to inform himself that Legacy negotiated severance and other entitlements as part of a corporate transaction with Crescent Point Undertaking 16: To disclose all the facts and the knowledge of Mr. Garrity as corporate representative or in respect of which he has an obligation to inform himself that during the process Legacy acted on other factors that are within the knowledge of its officers, directors, employees and advisors, as alleged Objection 81: Now, in paragraph 8, the second sentence, Mr.

Garrity says: (as read) “In particular, without limitation...” And then it provides particulars of the allegation that the process failed to provide fair value. Now is the time to deal with the without limitation and tell me if there’s anything else to be added to this list in paragraph 8 Objection 86: I’m asking now for the witness, or for you, if you want to help with this, Mr. Foster, is there anything other than roman numerals (

i) through (iv) in support of 8(d) [ 78 ] With Undertakings 14 and 16, Legacy runs into the same hurdle as noted with the Undertakings related to paragraph 7 of the Statement of Claim. Brookdale’s response to Undertakings 14 and 16 at Tab 5 of the Evidence book is: Answer: To the extent that the question goes beyond a request for facts that Mr. Garrity, or other sin the Brookdale Entities, know of their own account, or asks for evidence in support of a fact or how the Brookdale Entities propose to prove a fact, or for privileged information, the Undertaking is refused. However, Mr.

Garrity advises that to the best of his information and knowledge neither he nor others within the Brookdale Entities have independent knowledge of the process followed by Legacy. Mr. Garrity did review the Circular provided by Legacy that does speak to Legacy’s description of the process. [ 79 ] Facts learned through the evidence of the Defendants or acquired by counsel are not discoverable: see Millott and Blair .

Therefore, I dismiss Undertakings 14 and 16. [ 80 ] With respect to Objections 81 and 86, Brookdale at paragraph 8 of its Statement of Claim has outlined the process Legacy followed that they allege resulted in a failure to provide fair value for Legacy shareholders, including Brookdale. If what Legacy seeks is whether Brookdale will be amending their claim to add anything further to the enumerated grounds in paragraph 8, Mr. Garrity is directed to answer this. To the extent that the intent of the question is to obtain information beyond the scope of what Mr. Garrity knows

or has an obligation to inform himself, the question is improper. iii. Paragraph 9 of the Reply to Defence [ 81 ] Undertakings 18 and 19 relate to paragraph 9 of the Reply to Defence: 9. The Plaintiffs deny the allegations stated in paragraph 33 of the Statement of Defence and say: (

a) There was no urgency to accept the Crescent Point offer, or any offer, on May 12, 2015; (

b) Asset bids had been received that were sufficient to address any concerns about Legacy’s level of debt, and if accepted could still allow Legacy to increase shareholder value; (

c) Crescent Point’s offer was not a firm offer and did not provide fair value for Legacy shareholders; and (

d) As of May 12, 2015 a competitive bid process for a Corporate Transaction had not been allowed to develop. [ 82 ] Undertakings 18 and 19 and Brookdale’s responses are as follows: Undertaking 18: To advise what specific asset bids are being pleaded in paragraph 9(

b) of the reply to defence pleading Answer to Undertaking 18: This Undertaking is Refused. The question asks for opinion evidence. Further, to the extent that the question goes beyond a request for facts that Mr. Garrity, or others in the Brookdale Entities, know of their own account, or asks for evidence in support of a fact or how the Brookdale Entities propose to prove a fact, or for privileged information, the Undertaking is refused. However, Mr.

Garrity advises that to the best of his information and knowledge neither he nor others within the Brookdale Entities have independent knowledge of what asset bids were received as part of the process followed by Legacy. Mr. Garrity did review the Circular provided by Legacy that does speak to Legacy’s description of the process. Undertaking 19: To identify and advise of the facts within Mr.

Garrity’s knowledge or in respect of which he otherwise has a duty to inform himself that asset bids have been received that were sufficient to address any concerns about Legacy’s level of debt, and, if accepted, could still allow Legacy to increase shareholder value Answer to Undertaking 19: This Undertaking is refused. The question asks for opinion evidence. Also see Answer to Undertaking #8. [ 83 ] I disagree with Brookdale that Undertakings 18 and 19 are asking for opinion evidence. Legacy is asking, and is entitled to know, what asset bids Brookdale is referring to at paragraph 9(

b) of its Reply, and the facts upon which Brookdale relies. Therefore, I direct Brookdale to provide an answer to the questions resulting in Objections 18 and 19. I note that at the hearing, Legacy suggested that if Brookdale prefers, it could provide particulars to the pleadings. I leave it to counsel as to whether they wish to proceed in that fashion. iv. Paragraph 30(

c) of the Statement of Claim [ 84 ] The unnumbered Objection at page 108 and Objection 77 relate to paragraph 30(

c) of the Statement of Claim and paragraph 18(

c) of the originating application (which are identical): 30. An order pursuant to Subsections 191(13) and (17) of the ABCA : … (

c) directing the Defendants to pay interest of 11 percent on the Amount, representing the approximate dividend yield on shares of Crescent Point, or such other rate as may be directed by this Honourable Court, calculated from June 29, 2015 to the date on which the Amount is paid; … Objection at page 108 (unnumbered): So can you please tell me all the facts regarding this claim for 11 percent, including the basis there about the dividend, within your knowledge or in respect of which you have an obligation to inform yourself? Objection 77: Looking at paragraph 18(

c) in the originating application, sir, and paragraph 30(

c) of the statement of claim, there is an allegation that 11 percent represents the approximate dividend yield, on shares of Crescent Point, calculated from June 29, 2015, to date. Can you please tell me the facts in that regard within your knowledge or in respect of which you have an obligation to inform yourself? [ 85 ] At the hearing, counsel for Legacy stated that they are seeking the calculation for the 11 percent dividend yield alleged.

In response to Brookdale’s assertion that this has been answered and is information known by Legacy, counsel for Legacy stated that this is an allegation made by Brookdale so they should provide the calculation. [ 86 ] In my view, both of these questions seek the same thing – Legacy is simply asking where Brookdale came up with the figure of 11 percent that it states in their pleadings. Legacy is entitled to know the facts that Brookdale relies on. As such, I direct Brookdale to provide an answer to the question giving rise to the unnumbered Objection at page 108 and Objection 77. Conclusion [ 87 ] In

summary, for the reasons outlined above:

a) I allow Legacy’s application with respect to Objections 1, 2, 3 and 4 and direct that Brookdale provide an answer.

b) I allow Legacy’s application with respect to Objection 19, permitting Legacy to rephrase the question in accordance with these reasons and direct Brookdale to provide an answer to the rephrased question.

c) I dismiss Legacy’s application with respect to Undertakings 6, 8, 9, 10, 14, 16 and Objections, 6, 23 and 24, 59, 60 and 80.

d) I allow Legacy’s application with respect to Undertaking 7, permitting Legacy to rephrase the questions as outlined in these reasons.

e) I allow Legacy’s application with respect to Objection 79, permitting Legacy to rephrase the question as outlined in these reasons.

f) I dismiss Legacy’s application with respect to Objections 81 and 86 as the question is currently phrased, but direct that Brookdale advise whether it will be amending their claim to add anything further to the enumerated grounds in paragraph 9 of its Statement of Claim.

g) I allow Legacy’s application with respect to Objection 18 and 19, to the unnumbered Objection at page 108 and Objection 77. Costs [ 88 ] With respect to costs, success was divided. Therefore, costs shall be in the cause. Heard on the 9 th day of December, 2022. Dated at the City of Calgary, Alberta this 2 nd day of March, 2023 . K.M. Horner J.C.K.B.A. Appearances: Steven Leitl, KC Chase Holthe Norton Rose Fulbright Canada LLP for Crescent Point Energy Corp. D. B. Foster, KC Andrew Wilkinson Rose LLP for Brookdale International