A Yukon Supreme Court justice has has dismissed an application from the Yukon Energy Corp. (YEC) to strike information from a claim against it.

Justice Suzanne Duncan issued her 17-page written decision on Aug. 14. This decision affects North America Construction’s (NEC’s) civil lawsuit against the YEC.

This litigation is the result of a contractual dispute between the two parties. It originated when NAC was contracted to install a third turbine, new switchgear equipment and more power cables.

This was part of the redundancy project related to the Aishihik generating station. The facility is owned by the YEC.

This claim had already gone to trial. Four of the claims were overturned by the Court of Appeal of Yukon. A new trial was ordered and set to begin on Nov. 18.

Before getting to her reasons, Duncan gave some background of the case.

The YEC launched this application to get the specific pleading struck from before this matter go back for the new trial.

The YEC argued, through its lawyer, that NAC allegedly breached its contract. It alleges that the claim is an abuse of process. and should be dismissed with leave to amend.

The YEC also is asking the court to strike the costs in the contractor’s claim for cables.

A third ground for the applications centred on an allegation that NAC did not provide new cabinets with the right dimensions outlines in the contract. It argued that this was decided in the first trial and not appealed.

The last ground of the application, is that the contractor’s defence to the YEC’s counter claim be banned from the new trial. The reasoning is that this was decided in the first trial.

The NAC defence is that the YEC failed to mitigate any deficiencies in the project.

Duncan said she can strike a claim provided it is “plain and obvious” that there is “no reasonable prospect of success. This is as per Supreme Court of Canada case law. She added that the territory’s Court of Appeal has made a similar finding.

She explained that the contractor alleges that the YEC did not follow the contract. It provided that the YEC has to pay its contractor all adjustment to the costs caused by changing the completion date.

The original deadlines was June 19, 2011. It was pushed by to Nov. 30, 2011. This was due to production having to be shut down at certain points.

NAC alleges that this decision resulted in it incurring additional costs related to the project. It further alleges that the YEC provided no compensation.

The YEC disputes this and added that if any additional costs were incurred it was due to NAC’s actions. NAC denies this but did say it was on the site for additional time other than the delays.

“YEC says it would be an abuse of process to allow NAC to pursue the same costs under a different guise,” Duncan said in the decision.

Moving to her analysis, she said she felt that NAC did not have to deny every single paragraph in the YEC statement.

She didn’t feel that NAC refused to admit any of the YEC’s claims as a result of not pleading top all paragraphs in the amended statement of defence.

“In my view, the rules do not require a reply to address every single aspect of the proceeding pleading, in this case, the amended statement of defence,” Duncan said in the decision.

She felt that if NAC is relying on facts that are different that the ones in its defence or that have not been pleaded, these should be pleaded in reply.

She determined that facts were pleaded in the amended statement of claim, which supports NAC’s argument.

She added that the YEC could, at trial, argue that these facts are not enough to support NAC’s claims. She explained this is information for a trial.

“It is not a ground to strike the pleading as it does not meet the ‘plain and obvious’ tests set out in the jurisprudence,” Duncan said.

Moving to the issue of admissions, she said any pleading must “be read generously, and the facts in them are to be assume to be true.” She felt that NAC made no admissions.

Listing her reasons, she said the claim in question was the primary subject of the original trial, that is subject to this appeal.

Duncan said it’s unreasonable to determine that any admission was made that could justify ending the claim, without a statement from the plaintiff that outlines it is not moving forward on this front.

She added that the amended statement of claim pleaded damages as a result of this claim.

“This factors all contradict YEC’s assertion that NAC made an admission that advertently or inadvertently results in their inability to bring the Schedule D claim,” Duncan said in the decision.

She explained that YEC could have a defence, and a motion to strike is not the proper venue to evaluate these claims. She was not persuaded by the argument that this is an abuse of process.

As for the cable list pleadings, the YEC argued that NAC is inconsistent on this.

NAC stated it created the list. It also explained, in a reply to the YEC, that it could not fully complete the list due to being refused access to the Aishihik site.

Duncan said that anything that took place at the original trial can’t be considered by her now.

“I do not agree that this ambiguity in NAC’s pleadings amounts to an abuse of process,” Duncan said in the decision.

That said, she felt some clarification was needed regarding the cable list. She explained there could have been circumstances which could have led to the records being incomplete. Shed pointed out that the NAC is willing to amend its claim to help the YEC know the case it has to meet.

“This is a fair way to resolve the issue,” Duncan said in the decision.

If the confusion persists, she said, it can be an argument at trial.

She explained that this issue is not serious enough to be described as misuse of court procedure nor disrupting the administration of justice.

On the issue of the liability for the change of work, both parties agree that this was decided during the original trial and not appealed. They argue that it should not appear in the new trial.

Duncan agreed, ruling that the pleadings can be changed.

On the issue of failing to mitigate, she pointed out that the Court of Appeal upheld the trial judge’s decision on this issue, despite ordering a new trial.

This decision was that the YEC did not fail to mitigate when it prevented NAC from accessing the worksite.

That said, she explained NAC can raise this issue on other areas of mitigation.

Duncan’s last ruling on this case was that all the amendments discussed must be presented to the YEC at a future case management conference.