Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District

2013 BCSC 2305 Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District, 2013 BCSC 2305 Date: 20131206 Docket: S084599 Registry: Vancouver Between: Bilfinger Berger (Canada) Inc., Bilfinger Berger AG, Fru-Con Construction Corporation and Bilfinger Berger/Fru-Con, a Joint Venture Plaintiffs And: Greater Vancouver Water District, Greater Vancouver Regional District, Greater Vancouver Sewerage and Drainage District, Hatch Mott Macdonald Ltd., and The Corporation of the District of North Vancouver Defendants AND Docket: S083856 Registry: Vancouver Between: The Greater Vancouver Water District Plaintiff And: Bilfinger Berger AG, Bilfinger Berger (Canada) Inc., Fru-Con Construction Corporation and Bilfinger Berger/Fru-Con, a joint venture, Travelers Guarantee Company of Canada La Compagnie Travelers Garantie Du Canada, Chubb Insurance Company of Canada Chubb Du Canada Compagnie D'Assurance and Zurich Insurance Company Zurich Compagnie D'Assurance Defendants Corrected Judgment: The text of the judgment was corrected on the front page on December 24, 2013. Before: The Honourable Madam Justice Griffin Oral Ruling re Bilfinger Application for Production of Metro Vancouver Documents In Chambers Counsel for the Plaintiffs in Action No. S084599 and for the Defendants in Action No. S083856 (the "Bilfinger Berger parties"): Krista Johanson Michael A. Skene David Claassen Counsel for the GRWD, GVRD, GVS&DD, and Corporation of North Vancouver (the "Metro Vancouver parties"): John R. Singleton, Q.C. Stephen J. Berezowskyj Steven W. Lesiuk Place and Date of Hearing: Vancouver, B.C. December 5, 2013 Place and Date of Ruling: Vancouver, B.C. December 6, 2013 Introduction [1] THE COURT: The first three named plaintiffs in Action S084599 (collectively, "Bilfinger") have applied for orders for the production of documents from the first three-named defendants in the same action, collectively referred to as "Metro Vancouver". This application was also brought in the parallel Action S083856, where these parties are in opposite positions as plaintiffs and defendants. This application was heard on December 5, 2013. [2] By way of background, Bilfinger had contracted to build two large tunnels for Metro Vancouver for a contract price in the range of $100 million. It stopped work partly through this massive construction project. It alleges that rock conditions were unexpected and dangerous. It alleges that the design by Metro Vancouver's engineer on the project, Hatch Mott Macdonald Ltd. ("HMM") was flawed and that Bilfinger was not provided with sufficient information. It is claiming large damages against Metro Vancouver. [3] Metro Vancouver says that Bilfinger breached its contract to do the work. Metro Vancouver says that Bilfinger quit the project for other reasons, suggesting that Bilfinger under-bid the project and the project became uneconomical for it. [4] Metro Vancouver has since hired others to complete the project, which work is ongoing. It claims large damages against Bilfinger for the cost of completing the project, to the extent those costs exceed the price it would have paid Bilfinger under the contract and pursuant to change orders. Bilfinger understands that the damage claim asserted by Metro Vancouver against it is in excess of $200 million. [5] Both sides to this dispute knew from the beginning that document discovery would be a huge undertaking. Counsel cooperated to enter into document production protocols and have resolved many document discovery issues between them. [6] The parties agreed that document discovery would be governed by the prior Rules of Court, and this was incorporated in a case management order pronounced January 4, 2010. As such, the discovery of documents in these actions is governed by the former Rules of Court, B.C. Reg. 221/90, and not by the current Supreme Court Civil Rules. [7] Pursuant to former Rule 26(1) a party may demand a list of documents which are or have been in its possession or control relating to any matter in question in the action, and the party receiving that demand must list those documents. [8] The parties do not contest the principles that apply to document production. Do the Documents Relate to Any Matter in Question [9] The first question is whether or not the documents relate to a matter in question in the action. [10] The facts regarding the ongoing work on the construction project have two general areas of relevance: 1. first, the actual site conditions encountered may assist in proving or disproving the allegations by Bilfinger that the original design was materially flawed; 2. second, the costs of the ongoing work are relevant to Metro Vancouver's large claim for damages. [11] Because work on the project has been ongoing, Metro Vancouver has been required to engage in an ongoing document discovery process. There is no doubt that it has agreed to produce large quantities of information, but it is still catching up to fulfil some of those document discovery obligations. [12] Relevant on this application is an earlier order of this Court, that of Fenlon J made April 10, 2012 by consent. By term 4 (q) of that Order, Metro Vancouver was order to produce any and all site documents related to the completion of the work. [13] Bilfinger submits that the documents sought by it on this application are simply a further particularization of the above term of the Fenlon J. order. It seeks: 1. All paper correspondence with the completion contractor during the period of the completion contract and all electronic correspondence subsequent to August 2010; and 2. All paper correspondence with the engineer and all electronic correspondence with the engineer subsequent to August 2010. [14] The reason for the date of August 2010, is that Bilfinger understands that Metro Vancouver has agreed to produce electronic correspondence up to that date, but not afterwards. [15] Metro Vancouver's position is that it is simply too onerous to require ongoing production of e-mails between the various people on the site. It suggests that the relevance of such information is remote. It submits that once the tunnelling was complete, all that is relevant about the project's completion is the cost of completion. [16] Bilfinger disagrees. It says that email correspondence tends to be the most revealing, rather than written project reports, as the latter tend to be scrubbed free of information that might help Bilfinger in the lawsuit and the former are more spontaneous. Bilfinger says that the ongoing construction work still reveals information about the site conditions, even if the tunnelling is complete. For example, there can still be ongoing information about such things as rock-falls, which may reveal flaws in the geotechnical conditions of the tunnels. [17] I am persuaded by Bilfinger that the sought-after documents do relate to matters in question in the action. Discretion to Limit Production [18] Nevertheless, this court retains discretion to limit production of documents where the scope or expense of production is disproportionate to the matters in issue. [19] Given the quantum of damages at issue in this case, I am unable to accept Metro Vancouver's argument that because production of e-mails is a great burden, the scope of production must be reduced. The burden has been heavy on all parties. [20] Bilfinger's request is related to two large entities involved in the ongoing project: the completion contractor and the engineer. It is not seeking emails between every small player on the project. [21] I do have one concern with respect to Bilfinger's application. It is likely that some of the correspondence involving the completion contractor and engineer will be unrelated to anything at issue in this lawsuit. As a simple example, a purely social email message would not relate to the issues. On the other hand, given the scope of the issues in the case, it is likely to involve more work and dispute to find irrelevant documents than it would to simply produce all of them. [22] Bilfinger is not requesting that Metro Vancouver go through the likely more burdensome task of culling out clearly irrelevant documents. Nevertheless, I consider this to be an option open to Metro Vancouver if it so chooses. Conclusion [23] I am satisfied that Bilfinger is entitled to the order it seeks, subject to certain variations to ensure the scope is related to the matters in issue in the lawsuit. [24] Metro Vancouver is required to produce the following documents related to completion of the work: 1. All paper correspondence with the completion contractor during the period of the completion contract and all electronic correspondence subsequent to August 2010; and 2. All paper correspondence with the engineer and all electronic correspondence with the engineer subsequent to August 2010; 3. Provided that Metro Vancouver is not required to produce documents in the above categories, if the documents could not be part of a chain of inquiry relevant to any of the following: a) The quantum of Metro Vancouver's damages, including all aspects of the costs of the work to complete the project and of delay; b) Site conditions and safety issues, including rock conditions or rock failures or unsafe conditions in the tunnels; c) The existence of site conditions differing from those set out in the tender documents; d) Project design, including all changes to the design and whether the design was safe and viable; e) The adequacy of HMM's geotechnical investigations and design decisions; f) The factors responsible for the rate of tunnelling progress; g) Whether Metro Vancouver treated Bilfinger with fairness and probity in its administration of the contract; and, h) Whether Metro Vancouver or the completion contractor or engineer have taken any steps in respect of completion of the work or administration of the completion contract, because of this litigation (as opposed to steps they would have taken were it not for the existence of this litigation). [25] In terms of timing of production, this shall be within 60 days of this Order, or for subsequently created documents, within 60 days of the creation of the document. [26] This concludes my ruling on the Bilfinger applications. Costs will be in the cause. "S.A. Griffin, J." The Honourable Madam Justice Susan A. Griffin