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; GSI appealed.
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 information:
- 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 permitted.
- 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 prove.
- 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 case).
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 information.