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Category: Civil Procedure Page 2 of 12

Revisiting the Doctrine of Spoliation in the Age of Electronic Documents

By: Gideon Christian

PDF Version: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents

The COVID-19 pandemic has driven us deeper into the virtual world. In our “new” work environments, conversations which were previously had one-on-one in office settings are now carried on by phone calls and emails. Meetings previously held in person are now substantially held virtually in Zoom, Microsoft Teams, WebEx, etc., and they are often recorded in electronic format. One of the impacts of this change is the fact that more than ever before, evidence of our work or business interactions, discussions and transactions will exist in this electronic format. We are generating more electronic documents than ever, and some of these documents may become the subject of discovery in future litigation arising from present transactions. The inability to produce these documents when they become relevant in future litigation may give rise to spoliation. Although the doctrine of spoliation was developed in the age of paper documents, the courts have increasingly applied it in the context of electronic documents. It is important to revisit this common law doctrine to identify the proper approach in its application to electronic documents, and its limits in addressing issues relating to preservation of electronic documents in litigation.

eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

By: Gideon Christian

PDF Version: eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

In adversarial litigation, oral questioning is an out-of-court pre-trial or pre-hearing proceeding where a party to litigation orally examines (by way of questioning) under oath another party adverse in interest, or their agents, for the purpose of adducing information that may be used as evidence. In the Alberta Rules of Court, Alta Reg 124/2010 (Alberta ROC), oral questioning can take the form of questioning for discovery (Rules 5.17 and 5.22) or questioning on application (Rules 6.7 and 6.8). Before the COVID-19 crisis and its social-distancing requirements, the default method of oral questioning in civil litigation was in person, with the parties and their lawyers present at a physical location accessible to all, such as the lawyer’s office or some other location chosen by the parties. A certified court reporter must also be present, who swears the witnesses and also takes record of the ‘question and answer’ proceeding.

The COVID-19 pandemic has resulted in public health and judicial directives enforcing isolation and social-distancing rules. Consequentially, in-person questioning became impractical on public health grounds. Although the justice system was substantially paralysed by the pandemic, litigation must go on even in that state of paralysis. In response to the realities imposed on the justice system, in-person oral questioning gave way to virtual or remote questioning using audio- or video-conferencing technologies. This method of questioning is what I refer to in this post as eQuestioning (short for electronic questioning).

AER Commissioners Grant Summary Dismissal of Applications for Common Carrier and Rateable Take Orders

By: Nigel Bankes

PDF Version: AER Commissioners Grant Summary Dismissal of Applications for Common Carrier and Rateable Take Orders

Decisions Commented On: (1) 2020 ABAER 002, Bearspaw Petroleum Ltd. Common Carrier and Rateable Take Order Applications, Applications 1877294 and 1878333, and (2) Re: Proceeding 360 Harvest Operations Ltd., Decision on Motion to Dismiss, Bearspaw Petroleum Ltd. Applications 1877294 and 1878333, January 24, 2020

In January 2017 Bearspaw filed applications with the Alberta Energy Regulator (AER) seeking common carrier and rateable take orders against Harvest Operations Ltd with respect to gas produced from the Crossfield Basal Quartz C Pool (BQC pool). The matter was originally set down for hearing in September 2018 but was adjourned pending other legal proceedings in which Bearspaw had to establish its rights to produce from its 02/11 well in the BQC pool (so far as I am aware those proceedings are not reported). The current hearing was scheduled to begin January 13, 2020, but on November 14, 2019 Harvest filed a motion asking the AER to dismiss Bearspaw’s applications or adjourn the proceedings. On January 24, 2020 the Commission hearing panel chaired by Cecilia Low granted Harvest’s motion and dismissed the applications. On January 30, 2020 the Commissioners issued a decision cancelling the scheduled hearing; the cancellation decision contains a hyperlink to the Commissioners’ decision on the motion.

Material and Cultural Causes of Delay

By: Drew Yewchuk

PDF Version: Material and Cultural Causes of Delay

Case Commented On: R v King, 2019 ABQB 467

This is the seventh instalment in my long-running series of blog posts covering Alberta decisions dealing with the fallout of R v Jordan, 2016 SCC 27, released almost three years ago. This post starts with a discussion of the recent R v King, 2019 ABQB 467, which covers one of the two live issues about Jordan that will be going up before the SCC: whether or not the time between when an application or case is heard and when it is decided (often called ‘judicial delay’; I will refer to it as ‘judicial decision-making time’) is excluded from the delay calculation. This issue will be before the Supreme Court as part of R v KGK2019 MBCA 9, on September 25, 2019. (The second issue is how the timelines apply to minors, an issue in the appeal of R v KJM2018 ABCA 278, which the SCC heard in February 2019). The second part of the blog post discusses some longer-term impacts of Jordan, and some of the limitations of the decision.

Gross Overriding Royalty Payable on 100% of Production

By: Nigel Bankes

PDF Version: Gross Overriding Royalty Payable on 100% of Production

Case Commented On: Obsidian Energy Partnership v Grizzly Resources Ltd, 2019 ABQB 406

In this decision, Master J.T. Prowse granted summary judgment in favour of Obsidian (formerly Penn West Petroleum) against Grizzly Resources, concluding that Obsidian’s gross overriding royalty interest (GORR) of 2.75% was payable on 100% of production from the encumbered properties rather than on Grizzly’s working interest in the properties.

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