CNOOC Petroleum North America ULC v ITP SA, 2024 ABCA 17

In the Court of Appeal of Alberta Citation: CNOOC Petroleum North America ULC v ITP SA, 2024 ABCA 17 Date: 20240118 Docket: 2301-0302AC Registry: Calgary Between: CNOOC Petroleum North America ULC Respondent (Appellant) - and - ITP SA Applicant (Proposed Respondent) - and - Sunstone Projects Ltd. and Wood Group Canada, Inc. Respondents (Respondents) _______________________________________________________ Oral Reasons for Decision of The Honourable Justice Jo'Anne Strekaf _______________________________________________________

Application to Grant Party Status _______________________________________________________ Oral Reasons for Decision of The Honourable Justice Jo'Anne Strekaf _______________________________________________________ [ 1 ] This is an application by ITP SA to be named or added as a respondent on an appeal of a production order granted in an action commenced by CNOOC Petroleum against ITP SA, Sunstone Projects Ltd. and Wood Group Canada, Inc., which action arises out of the failure of a pipeline. [ 2 ] The appeal relates to disputed privilege claims advanced by CNOOC over records which relate to the post-failure investigation, including two reports that address that failure of the pipeline.

The case management judge concluded that certain of CNOOC’s privilege claims were without merit and ordered CNOOC to provide an Amended Amended Affidavit of Records, which it did in November 2022. Wood Group brought an application challenging some of the privilege claims in that Amended Amended Affidavit of Records. ITP participated in that application and filed written materials and made oral submissions. On December 5, 2023, the case management judge ordered CNOOC to produce further records. CNOOC appealed the order and identified ITP’s status on appeal as “not a party on appeal”.

The appeal is a fast-track appeal scheduled to be argued on April 8, 2024. [ 3 ] ITP first submits that it should be confirmed as a party. In my view, the rules govern. Rule 14.1(

m) defines a respondent as, “unless the context otherwise requires, the person who, under an enactment or these rules, (

i) is named as a respondent to an application for permission to appeal, or (ii) is named as a respondent to an appeal.” ITP was not named by the appellant so they are not a respondent. [ 4 ] It is an entirely separate question whether they should have been named. In this particular case, it seems to be quite clear that it would have been prudent for ITP to have been named as a party. This is a major piece of litigation with two sets of defendants, where both parties participated in the application below.

There is no reason why ITP, or a party in ITP’s position, should have been required to have brought its own application to be heard at the same time as the application brought by its co-defendants. While it might have been sensible for ITP to have been named as a respondent, they were not so the question becomes whether they should be added under Rule 14.57. [ 5 ] The usual test that is applied when an applicant seeks to be added as a respondent is: (

i) whether the applicant has a legal interest in the outcome of the proceedings; (ii) whether it is just and convenient to add the applicant; and (iii) whether the applicant’s interests can be adequately protected only if it is granted party status. [ 6 ] It seems to me that the applicant is properly added as a respondent. It clearly has a legal interest in the proceedings. It is just and convenient to add them as this application was brought promptly.

They may have a different approach on how they would like to advance the legal issues and they should not be expected to rely on the counsel selected by their co-defendant. They are entitled to have their counsel address the issues. [ 7 ] The default rule would be that as a respondent, ITP would be permitted to file a factum subject to the usual page limits, deadlines and time limits for oral submissions. The question to be determined is whether there is any reason to depart from the default rule. In the circumstance, I have decided to allow CNOOC’s request to file a reply factum.

While that may or may not be helpful, to the extent that might assist the panel, I direct that CNOOC is permitted to file a reply factum of no more than five pages by March 26, 2024. [ 8 ] As there has been divided success here today, the parties can all bear their own costs of this application. Application heard on January 11, 2024 Reasons filed at Calgary, Alberta this 18th day of January, 2024

Strekaf J.A. Appearances: J.E. Sharpe A.F. Sunter (no appearance) R.L. Martz (no appearance) S.J. Fader (no appearance) K.S. Kidd (no appearance) for the Respondent, CNOOC Petroleum North America ULC P.D. Banks A.M. Pozzobon (no appearance) T. Kemp for the Applicant M. Mohamed, KC M.D. Mysak (no appearance) M.J. LaFleche (no appearance) for the Respondents, Sunstone Projects Ltd. and Wood Group Canada, Inc.