PDF version: Time to proclaim the compulsory unitization provisions of the Oil and Gas Conservation Act
Decision commented on: Butte Energy Inc. Application for Special Oil Well Spacing, Chigwell Field, 2013 ABERCB 006.
Regular readers of this blog will know that this is not the first time that I have used this forum to call for the proclamation of the compulsory unitization provisions of the Oil and Gas Conservation Act (OGCA) RSA 2000, c O-6 (see here) but the facts surrounding this decision of the Energy Resources Conservation Board (ERCB, or Board) present a particularly compelling case for compulsory unitization to deal with holdouts which might convince even the sceptics..
PDF version: Under the Influence: The Alberta Court of Appeal and the Test for Discrimination
Cases commented on: Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573 (SCC); Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, leave to appeal application filed, April 15, 2013, SCC
On March 28, 2013 the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Association of Registered Nurses of Alberta. Linda McKay-Panos blogged on that case here; it involves a claim of discrimination by two nurses with opioid addictions who were disciplined by their professional association after stealing narcotics from their employers. A majority of the Alberta Court of Appeal (per Slatter, JA, Ritter JA concurring) held that there was no discrimination and thus no duty to accommodate the nurses, using an approach that focused on stereotyping, prejudice and arbitrariness. Writing in dissent, Justice Berger undertook a traditional prima facie discrimination analysis and decided that the nurses had experienced discriminatory treatment. This split reflects a wider uncertainty about the appropriate test for discrimination under human rights law, and in particular the extent to which the approach to discrimination under section 15 of the Charter should have an influence. In the Supreme Court’s most recent human rights judgment, Moore v British Columbia (Education), 2012 SCC 61 (per Abella J), the Court declined to explicitly clarify the proper test, yet implicitly indicated that the traditional prima facie approach to discrimination is correct. Perhaps that is why the Court decided not to hear the appeal in Wright, which was decided before Moore. A more recent Court of Appeal decision, Lethbridge Regional Police Service v Lethbridge Police Association, was decided after Moore, yet Justices Martin, Watson and Slatter maintained a focus on stereotyping as the defining feature of discrimination. Worse, Lethbridge Police seems to impose additional burdens on complainants in human rights cases. This post will critically consider the Alberta Court of Appeal’s approach to discrimination and argue that the Supreme Court should grant leave to appeal in Lethbridge Police to clarify the proper test.
PDF version: Species at risk and an adjustment clause
Case Considered: Matichuk v Quattro Holdings Ltd, 2013 ABQB 164.
The case of Matichuk v Quattro Holdings Ltd involves a contractual dispute over the sale of a parcel of agricultural land in St. Albert. The parties entered into a purchase and sale agreement in June 2012. The facts set out by Mr. Justice G.A. Verville suggest the Vendor was keen to sell and the Purchaser was keen to purchase in order to develop the land (I presume residential). Time was of the essence. The closing date was set for early October 2012. But the deal began to go sideways just a couple weeks before closing. The Purchaser sought an adjustment (reduction) on the purchase price to account for the facts that there are five wetlands on the property, some which may be Crown owned under section 3 of the Public Lands Act, RSA 2000, c P-30, and that a bird species listed as “special concern” under the Species at Risk Act, SC 2002, c 29 – was known to nest on the lands. The Vendor was not agreeable, and insisted on closing for the full purchase price. The parties filed counter claims and Mr. Justice G.A. Verville heard arguments in late February at the Court of Queen’s Bench. Justice Verville decided in favour of the Vendor, ruling the environment adjustments provision in the contract being relied upon by the Purchaser was so vague as to be meaningless and thus the Purchaser could not rely on it. Accordingly, Justice Verville found that the Purchaser had repudiated the contract by refusing to close the deal.
PDF version: The interaction of the offset well and default clauses of an oil and gas lease
Case commented on: 1301905 Alberta Ltd. v Sword Energy Inc. 2013 ABQB 113
In this case the Court granted summary judgement for breach of the offset well obligation in an oil and gas lease. Assessment of damages was referred to a referee. Continue reading
PDF version: A Rather Quick Response to a Rather Typical Vexatious Litigant
Case commented on: Onischuk v Alberta, 2013 ABQB 89
The prominent September 2012 decision of Court of Queen’s Bench Associate Chief Justice John D. Rooke in Meads v Meads, 2012 ABQB 571, established a continuum of litigants, ranging from commonly encountered self-represented litigants, to infrequently encountered and almost always self-represented vexatious litigants, through to the highly unusual organized pseudolegal commercial argument (OPCA) litigant who is usually self-represented. Justice Rooke’s decision in Onischuk v Alberta concerns a litigant who appears to fit in the middle of that continuum, a rather typical vexatious litigant, although perhaps found to be so more quickly than has been the usual case. It is those two matters — typicality and velocity — that I focus on in this post.
PDF version: Supreme Court Renders Leave to Appeal Decisions in Several Alberta Cases
Cases Considered: R v Mack, 2012 ABCA 42, leave to appeal granted, April 11, 2013 (SCC); Métis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352, leave to appeal dismissed April 11, 2013 (SCC); Fitzpatrick v Alberta College of Physical Therapists, 2012 ABCA 207, leave to appeal dismissed April 11, 2013 (SCC)
On April 11, 2013 the Supreme Court of Canada handed down leave to appeal decisions in three cases from Alberta.
PDF version: When does the purchaser of an interest in a natural gas processing plant also purchase an interest in the sulphur block associated with the plant? Answer: only when the agreement (or perhaps ‘the elephant in the room’) says so!
Case commented on: Talisman Energy Inc v Esprit Exploration Ltd, 2013 ABQB 132
Talisman purchased Canadian 88’s interest in the East Crossfield Conditioning Plant in 2000. Did it also purchase the sulphur block and the liabilities associated with ownership of the block? In this case, and after undertaking an extensive and detailed contractual paper trail, Justice Sal LoVecchio concluded that the answer was no. The ‘elephant in the room’ was C88’s draft purchase and sale agreement (PSA) (which Talisman elected not to use) which, had it been executed, would have dictated the opposite result.
PDF version: The Manitoba Métis Case and the Honour of the Crown
Case commented on: Manitoba Métis Federation Inc v Canada (Attorney General), 2013 SCC 14
In its historic decision on the constitutional rights of the Manitoba Métis, the majority of the Supreme Court of Canada, in a decision rendered by the Chief Justice and Justice Karakatsanis (Rothstein and Moldaver JJ dissenting), concluded that section 31 of the Manitoba Act, 1870 (reprinted in RSC 1985, App. II, No. 11) expresses a constitutional obligation to the Métis people of Manitoba to provide Métis children with allotments of land. The majority held that the obligation did not impose a fiduciary or trust duty on the Crown but that it did engage “the honour of the Crown.” The majority held that the Crown failed to live up to the terms of that engagement and that the Métis were accordingly entitled to a declaration to that effect. The claim for declaratory relief in relation to the honour of the Crown was not barred by the law of limitations or the equitable doctrine of laches.
PDF version: What has Meads v Meads wrought?
Cases commented on: R v Duncan, 2013 ONCJ 160 (CanLII); R v Tyskerud, 2013 BCPC 27 (CanLII); Cassa v The Queen, 2013 TCC 43 (CanLII); R v Martin, 2012 NSPC 115 (CanLII); R v Lavin, 2013 ONCJ 6 (QL); Scotia Mortgage Corporation v Gutierrez, 2012 ABQB 683 (CanLII); Stancer (Re), 2012 BCSC 1533 (CanLII); Grattan (Re), 2012 NBQB 332,  NBJ No 353 (QL)
Associate Chief Justice John D. Rooke’s decision in Meads v Meads, 2012 ABQB 571 (CanLII) — one of CanLII’s Top Ten Cases of 2012 — established a category of vexatious litigants that he called “Organized Pseudolegal Commercial Argument” (OPCA) litigants. OPCA litigants “employ a collection of techniques and arguments promoted and sold by ‘gurus’ … to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals” (Meads at para 1). Although those techniques and arguments are varied, the essence of the OPCA litigants’ position is that they deny the authority of the state and the courts. Both of us have commented on the Meads case previously on ABlawg: see “The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case” and “The Top Ten Canadian Legal Ethics Stories – 2012”. What we want to look at in this post is the use that has been made of Meads in the intervening six months. We will also consider the extent to which OPCA and similar litigants may influence judges to embrace styles of judgment that are disrespectful of the parties appearing before them. The post will touch on the ethical problems created when judges embrace “literary flourishes” and “dry wit” in their decisions (Katie Daubs, “Legal Decision with literary flourish and dry wit making the round…” Toronto Star, March 29, 2013).
PDF version: Summary judgement on an oil and gas lease termination case
Decision commented on: P. Burns Resources Limited v Locke, Stock and Barrel Company Limited, 2013 ABQB 129.
In this appeal from an unreported decision of Master Laycock, Justice Bensler granted partial summary judgement on an application for a declaration that a petroleum and natural gas lease had expired during its secondary term for want of production or working operations. The evidentiary basis for this conclusion consisted primarily of production records filed with the Energy Resources Conservation Board (or its predecessors). On the appeal before Justice Bensler in the Court of Queen’s Bench the lessee supplemented the record with evidence of one of its employees and one of its consultants.