On August 5, 2014, the Alberta Court of Appeal released a
decision that may expand corporate litigants' document
production obligations. In Dow Chemical Canada ULC v. Nova Chemicals
Corp. (Dow Chemical), the Court of Appeal held that
records that were in the possession of the plaintiffs' parent
corporation should be considered to be within the plaintiffs'
control, and thus subject to production in their affidavit of
records if relevant and material, on the basis the documents
related to the plaintiffs' business.
OBLIGATION TO PRODUCE DOCUMENTS IN A LITIGATION
Rule 5.6 of the Alberta Rules of Court obliges parties
to produce affidavits of records disclosing all records that are
relevant and material to the litigation, and are or have been
within their control. The court may compel a non-party to produce
records in a litigation under Rule 5.13 of the Alberta Rules of
Court if one of the parties establishes that the non-party
controls records that are relevant and material to the litigation
and may be required to produce those records at trial.
FACTS OF THE CASE
Dow Chemical Canada ULC (Dow Canada) and Dow Europe GmbH (Dow
Europe) (collectively, the Dow Plaintiffs) alleged that Nova
Chemicals Corporation (Nova) had misappropriated the Dow
Plaintiffs' ethylene and had failed to optimize production at a
jointly owned ethylene plant. Nova applied for an order compelling
the Dow Plaintiffs to produce certain documents related to ethylene
production at facilities owned by The Dow Chemical Company (TDCC)
(TDCC Documents) on the basis that the TDCC Documents were relevant
to the calculation of damages. TDCC, which is the parent of Dow
Canada and Dow Europe, was not a party to this litigation.
MOTION JUDGE'S DECISION
The motion judge, Chief Justice Neil Wittmann of the Court of
Queen's Bench of Alberta, analyzed Nova's application as an
application to compel a non-party to produce documents. Chief
Justice Wittmann found that the TDCC Documents were not relevant
and material to the litigation, and therefore dismissed Nova's
COURT OF APPEAL'S DECISION
The Court of Appeal agreed with Chief Justice Wittmann that the
TDCC Documents were not relevant and material to the litigation,
and therefore need not be produced. However, the Court of Appeal
did not approach Nova's application as an application to compel
a non-party to produce documents. Instead, the Court of Appeal
found that the Dow Plaintiffs had control of the TDCC Documents and
therefore would have been obligated to produce them in their
affidavit of records if they were material and relevant.
The Court of Appeal's analysis on the issue of control of
the TDCC Documents appears to depart from the definition of
"control" it adopted in its 2012 decision McAllister v. Calgary (City)
(McAllister). In McAllister, the Court of Appeal
held that a party controls a document if the party has "a
legal right to access the record or to get copies of it from the
non-party" (paras. 6, 7). Instead of considering whether the
Dow Plaintiffs had a legal right to access the TDCC Documents or to
get copies of them from TDCC, the Court of Appeal held that
"records relating to production decisions at the
plaintiffs' facilities should be treated as documents under
their control, no matter who has possession of them." The
Court of Appeal did not comment on McAllister or on Rule
5.3 generally other than to note that a litigant should not be
permitted to avoid its document production obligations by
"putting the management of its business in the hands of a
While the Court of Appeal's comments on control of the TDCC
Documents were obiter dicta, they are nevertheless
significant; the Court of Appeal appears to have adopted a broader
view of who may be said to control a record. Given the brevity of
the Court of Appeal's analysis on this point, it is not yet
clear how this decision will be interpreted by lower courts.
However, litigants should be aware that document production
obligations in Alberta may now extend beyond records that a party
has a legal right to access, particularly in respect of documents
in the possession of related corporate entities.
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