Document production is a third rail to many arbitration practitioners, and not a likely topic for an annual reflection blog! The risk of provoking memories (possibly distant, but still visceral) of sifting through dusty boxes or their digital equivalent may be, for many potential commentators, too great. Privilege logs, relevance, and redactions, oh my!
Yet despite its earned reputation for costliness, inefficiency, and monotony, the results of document production can sometimes make or break a case. Beyond that, the process itself, whether in Redfern form (or not), can be used to educate a tribunal about what really matters (or doesn’t). As several recent cases under both domestic (Alberta) and international (Ontario) arbitration legislation illustrate, party strategies and tribunal decisions on document production can provide ammunition for post-award challenges.
As these cases illustrate, irrespective of how insulated from review a tribunal’s discretionary decisions may be in theory, in practice a litigant unhappy with an award may seek to leverage the outcome of a production dispute into a later challenge it. The upshot is that practitioners would be wise to keep an eye not just on the short-term consequences of choices made in the production phase, but on the long-term strategic implications of how those decisions may play out after an award.
Here are the two cases.
1. Teine Energy Ltd. v. Inter Pipeline Ltd, 2025 ABKB 545 – These parties are engaged in litigation before the Alberta Court of King’s Bench to enforce a domestic arbitration award (Teine) or for leave to appeal or to set it aside (IPL). In a previous Arbitration Matters blog I covered this case – Alberta – Court rejects Ontario approach to stays of enforcement – #892.
The underlying award granted Teine damages for breach by IPL of a contractual payment formula in connection with the movement of crude oil on the Mid-Saskatchewan Pipeline System. In the post-award litigation, IPL alleged that Teine did not comply with procedural orders made in the arbitration to produce records which, if produced, may have changed the tribunal’s decision on IPL’s limitations defence.
Under Alberta’s Rules of Court (Rule 3.2(3)(b)), applications to enforce an arbitral award, for leave to appeal, and to set aside an award are commenced by Originating Application. The Rule does not provide a right to document production unless the Court orders it. In this case, the Court found that it was necessary to create a test to determine whether a party in IPL’s position should receive document production in a post-award challenge. This was an issue of first impression in Canada.
The Court found that to protect party autonomy and to prevent post-award proceedings from becoming “a venue to relitigate every minor detail,” a court should only order record production in “extraordinary circumstances.” Agreeing with IPL, the Court found at para. 12 that those circumstances arise when a party can “show, not hypothesize, that there is good reason to believe that the missing records may have affected the result of the case.” To reach this conclusion, the Court rejected Teine’s argument that the threshold for ordering production to support a post-award application should be the more-stringent test for adducing fresh evidence in an appeal derived from Palmer v The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759 and Xerex Exploration v Petro-Canada, 2005 ABCA 224 at paras 116-17.
Applying the IPL est, the Court found that Teine had failed to produce documents it was ordered by the tribunal to produce but denied IPL’s disclosure request because “there is no reasonable basis for concluding that the withheld records, if disclosed, may have affected the Arbitral Tribunal’s conclusion on IPL’s limitation defence.” The tribunal had ruled that Teine could not have known that IPL was not following the applicable contractual formula until IPL produced relevant documents in the arbitration. The Court was not satisfied that the withheld records would have “provided any indication that IPL was not using the contractually agreed equalization formula or articulated a path to get from the [withheld records] to a conclusion that something serious was amiss with IPL’s equalization calculations.” Rather, IPL had supported its request to the Court by affidavit evidence that the withheld records would have been accompanied by other records, and that the latter might have alerted Teine. The Court rejected this as “pure speculation” and denied the production IPL sought.
Because its underlying application for leave to appeal or to set aside the award was scheduled to be heard shortly, IPL bought an urgent appeal of this order. The Court of Appeal reversed the lower court decision and ordered Teine to produce the withheld records. It ruled it was unnecessary to formulate a new test. Rather, upon finding: (1) that the withheld records exist; and (2) were in-scope of what the Tribunal ordered to be produced, “disclosure should have followed.” Then, it would be for the judge assigned to IPL’s leave to appeal/set aside application to apply the settled test for the admission of new evidence. The Court of Appeal preferred this approach because “[t]o do otherwise, especially in circumstances where the chambers judge did not have the records in question, risks predetermining IPL’s limited right of appeal from the Arbitral Tribunal’s decision before that application is ever heard.”
Put together, these judgments clarify that under Alberta’s domestic Arbitration Act, RSA 2020, c. A-43 and Rules of Court, Alta Reg 124/2010:
- If a party can show that documents existed and were not produced in accordance with an arbitral tribunal’s orders, they may be ordered to be produced in connection with an application to the Court of King’s Bench for leave to appeal or to set aside an award; and
- Whether those documents are admissible is to be governed by the test for admission of new or fresh evidence on appeal (Barendregt v. Grebliunas, 2022 SCC 22 at paras 29-35, citing Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759; Eurobank Ergasias SA v. Bombardier Inc., 2024 SCC 11 at para 43).
2. United Mexican States v. Gordon G. Burr et al., 2025 ONSC 5724 – In 2024, a NATA Chapter 11 Tribunal ordered Mexico to compensate investors in a gaming enterprise for breaches of the NAFTA Article 1105 commitment to provide fair and equitable treatment.
Mexico then sought to set the award aside under Model Law Articles 34(2)(a)(ii) and (iv) (Schedule 2 to Ontario’s International Commercial Arbitration Act, 2017, S.O. 2017, c.2, Sched. 5) on the basis that the tribunal did not afford Mexico a full and fair opportunity to be heard. Mexico based its argument on the tribunal’s denial of certain document requests, and the fact that the award did not expressly reference one of Mexico’s arguments. As explained below, the Ontario Superior Court of Justice rejected Mexico’s arguments.
Allegedly unlawful operations – Part of Mexico’s defence in the arbitration was that the investors had allegedly operated games of chance unlawfully alongside the games of skill they had a permit to operate. Mexico argued that this alleged illegality: (1) broke the chain of causation of the investors’ damages; (2) contributed to the investors’ losses; and (3) constituted “unclean hands” by way of gross mismanagement and illegality in the operation of the investors’ gaming enterprise. Mexico then argued to the Ontario Court that the tribunal’s denial of some of its document requests about the alleged illegality of the investors’ gaming operations denied Mexico a full and fair opportunity to make its intended case.
The tribunal had denied some of Mexico’s related document requests, including one for “Documents, such as invoices identifying the make and model of the gaming equipment used in the [Casinos]…” and “[o]peration manuals of said equipment.” The investors had opposed this, arguing that Mexico had not shown these documents to be relevant or material, having failed to introduce any evidence to substantiate its allegation of unlawful operations. Moreover, as the award recognized, an agency of the Mexican government had conducted on-site inspections and had records verifying that the investors were operating lawfully.
The Court rejected Mexico’s claim that it had been denied a fair opportunity to be heard, starting its analysis by explaining that Mexico faced a high bar to show procedural unfairness capable of setting aside the award. The application posed two key questions: first, at para. 83, “the question for me is not whether the Tribunal was right or wrong in its discretionary determination about documentary disclosure (which could potentially be addressed on appeal) but instead whether the Tribunal’s decision not to order production of the documents at issue unfairly precluded Mexico’s ability to present its case fully and fairly.” And secondly, even if the Court found such procedural unfairness, to set the Award aside would also have required a showing of “circumstances of ‘real unfairness and practical injustice’” flowing from that procedural unfairness.
Addressing Mexico’s argument that it was unfairly precluded from making its case about alleged illegality in the investors’ operations, the Court found “considerable evidence that, far from flawed to the point of unfairness, the process and proceedings of the Tribunal were comprehensive and provided ample opportunity for the parties to fully present their cases.” The Tribunal had 26 of Mexico’s 47 document requests, and one of two directly related to the investors’ compliance with the scope of legal operations. The Court concluded that Mexico was “selectively ‘cherry-picking’ aspects of the evidence, showcasing those aspects in isolation, ignoring the context and the process, and presenting a revisionist history of what were in fact routine and largely inconsequential documentary orders.”
Although the Ontario Court ultimately rejected Mexico’s request to set the award aside, the judgment reveals several points:
- While an alleged inability to make one’s case (Model Law Article 34(2)(a)(ii)) is a narrow basis on which to set an award aside, adverse procedural decisions may provide grounds for disappointed litigants to mount a challenge.
- To decide such challenges may involve, as the Ontario Court performed, a searching review of the arbitration procedure and the tribunal’s findings on the merits.
- For example, at para. 86, the Court specifically found that the tribunal had “appropriately cited issues of relevance, materiality, and proportionality” in granting or denying Mexico’s document requests.”
- The Court (appropriately) did not rule on whether the tribunal’s document production rulings were substantively correct. However, to decide whether they were unfairly prejudicial, the Court placed the document requests in relation to illegality in “the context and contents of the full [Award],” where the tribunal found that Mexico’s own agency had “contemporaneously inspected and confirmed the legality” of the investors’ gaming operations, and would have had records from those inspections.
Contributor’s Notes:
These cases illustrate how the document disclosure phase of an arbitration can come back into focus after the tribunal is functus officio. There are, in my view, too many variables at play to pronounce broad-brush guidance about what that means for a litigant’s strategy in any given case, other than to say that it is worth some attention up front. Counsel, and their clients, will be in the best position to weigh the strategic implications of decisions taken during the production process; these examples simply illustrate why the long game always needs to be part of the equation.
The Alberta case provides clarity about what should happen if a party to a domestic arbitration later discovers that another party did not fully comply with orders to produce documents. If the defaulting party is successful in the arbitration, it could come back to haunt them in a post-award proceeding. At the same time, the Ontario case illustrates that even where it is entirely appropriate to resist document disclosure (and the tribunal declines to order production), the fact of that discretionary process can provide a jumping-off point for time-consuming and expensive post-award proceedings.