On March 31, 2017, in Geophysical Service Incorporated v. NWest
Energy Corp (NWest Energy), the Court of
Queen's Bench of Alberta (Court) provided clarity on the
principles of relevance and materiality in the context of
questioning pursuant to part 5 of the Alberta Rules of
Court. The Court also provided helpful guidance on the ability
to redact irrelevant information from produced documents.
The decision in NWest Energy arose from an appeal from
an order issued in Master's Chambers. Geophysical Service
Incorporated (GSI) sought to compel Shoal Point Energy Ltd. (Shoal)
to answer three undertakings that Shoal had refused in questioning.
The undertakings related to the identification of certain parties
who may have attended a presentation and accessed data that GSI
alleged was its data, and for the production of confidentiality
agreements signed by those parties in relation to the information.
Shoal refused on the basis that the requested undertakings sought
responses and information that was not relevant and material. Shoal
did produce the confidentiality agreements, but with the names of
the parties other than Shoal redacted. On application by GSI, a
Master of the Court of Queen's Bench ruled the information did
not need to be provided as it was neither relevant nor material;
The Court dismissed GSI's appeal in its entirety, finding
that the information sought was neither relevant nor material. In
doing so, Justice D.B. Nixon provided a helpful summary and
consolidation of the law surrounding relevance and materiality, and
also the law surrounding the ability to redact irrelevant
information from documents that contain other relevant and material
Whether information is relevant and
material begins and ends with the Rules of Court, in
particular rules 5.1 and 5.2, and the pleadings. Counsel may only
seek facts of primary or secondary relevance. Facts of primary
relevance are those directly in issue. Facts of secondary relevance
are facts from which the existence of primary relevance can be
directly inferred. These are determined by the issues in the
pleadings. Questioning on information that may lead to facts of
secondary relevance, known as facts of tertiary relevance, is not
In making a determination of
materiality, the information "must be reasonably expected to
significantly help determine one or more of the issues raised in
the pleadings" in order to be material. Materiality is
"more a matter of proof" than relevance and refers to its
applicability or weight in relation to the issue it is presented to
Under rule 5.25(1)(a) of the
Rules of Court, a party is required to only answer
questions that are relevant and If a party suspects
information has not been properly disclosed, they are not allowed
to conduct fishing expeditions and "demand the production of
records on the basis of conjecture". There must be significant
evidence of non-disclosure. This must go "beyond mere
speculation". The Court noted, quoting from earlier decisions,
that the only exception to this rule is where "there is both
(a) evidence that there are fish in the pond, and (b) a reasonable
amount of fish in that pond". The "size of the pond"
is determined by the pleadings.
If only part of a record or document
is relevant, then only that part must be disclosed. The Court
clarified that "the party who is producing the records is
entitled to determine whether the information it is producing is
relevant and material" and may redact the record or document
accordingly. The party demanding disclosure does not have the right
to review the unredacted documents or records to determine whether
the redactions are proper. (Note that courts may undertake such a
review pursuant to rule 5.11(2)(a), which was not in issue in this
Justice Nixon found that the three undertakings GSI requested
all related to questions about dealings Shoal had with people and
entities that were not subject to the lawsuit. GSI had drafted its
pleadings "to focus on what Shoal Point has done, and not with
whom it has done it". The Court reiterated that "this
distinction is critical" since it provides the boundary for
determining relevance and materiality.
The decision in NWest Energy provides a concise summary
of relevance and materiality and clarity to counsel on the process
of determining whether information is relevant and material for the
purpose of questioning and document production and the importance
of the contents of pleadings for this purpose. In addition, the
case is a helpful precedent and provides insight on the ability to
redact information in documents that contain irrelevant
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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