Month: June 2010 Page 2 of 3

The case of the overbilling doctor Part II: The zero-sum game of enhancing administrative legitimacy?

On June 17, 2010

PDF: The case of the overbilling doctor Part II: The zero-sum game of enhancing administrative legitimacy?

Case considered: Searles v. Alberta (Health and Wellness), 2010 ABQB 157

This comment relates to an earlier post of mine back in June 2008 concerning the reassessment by the Minister of Health and Wellness on the billings of Dr. Gordon Searles, and the successful judicial review application by Searles in the Court of Queen’s Bench wherein Justice Burrows set aside the Minister’s reassessment because he found the process exhibited a reasonable apprehension of bias (Searles No. 1). (See Money attracts procedural fairness: the case of the overbilling doctor for necessary background to this discussion.) Subsequent to that judicial review the Minister recommenced the assessment process using a new delegate, and in September 2008 the Minister’s delegate advised Searles that he was once again reassessed in the amount of $985,777.09. Searles applied for judicial review of this second reassessment, once again asserting a reasonable apprehension of bias on the part of the Minister’s delegate (Searles No. 2).

Access to Justice, the Charter and Administrative Tribunals in Alberta: Who holds the Holy Grail?

By Jennifer Koshan

On June 15, 2010

In Administrative Law, Constitutional, Supreme Court of Canada

PDF version: Access to Justice, the Charter and Administrative Tribunals in Alberta: Who holds the Holy Grail?

Case considered: R. v. Conway, 2010 SCC 22

On June 11, 2010, the Supreme Court of Canada considered once again the jurisdiction of administrative tribunals to grant Charter remedies as “courts of competent jurisdiction” under section 24(1) of the Charter in R. v. Conway. This decision purports to broaden the power of administrative tribunals to award Charter remedies found in previous Supreme Court decisions by taking an “institutional” rather than “remedy by remedy” approach to the question of jurisdiction (at para. 23). However, Justice Rosalie Abella, writing for a unanimous Court, was also clear that a tribunal’s remedial jurisdiction under the Charter could be constrained by statute (at para. 22). Conway must therefore be read subject to Alberta’s Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3.

A century of liability for an abandoned well

By Nigel Bankes

On June 10, 2010

In Oil & Gas

PDF version: A century of liability for an abandoned well

Case considered: Dalhousie Oil Company Limited, Section 40 Review of Abandonment Cost Order No. ACO 2008-1, Turner Valley Field, ERCB Decision 2010-19

In this decision the Energy Resources Conservation Board (ERCB, the Board) confirms that the current owner of an abandoned well has a continuing responsibility to pay for the re-abandonment costs associated with that well even though the well in question had not produced since the 1920s. The decision is particularly interesting in the context of the current discussion surrounding who should assume responsibility for the long term liabilities associated with carbon capture and storage projects.

Ontario Court of Appeal holds that oil and gas lease continued by virtue of (late) payments under a unitization agreement

By Nigel Bankes

On June 8, 2010

In Oil & Gas

PDF version: Ontario Court of Appeal holds that oil and gas lease continued by virtue of (late) payments under a unitization agreement

Case considered: Tribute Resources v McKinley Farms, 2010 ONCA 392

The Court of Appeal has varied in part the decision in Tribute Resources v McKinley Farms that I blogged here. The trial judge held that any rights that Tribute held under the terms of an oil and gas lease or under the terms of a gas storage agreement (GSA) had terminated.

The Court of Appeal agreed with the trial judge on the GSA point but held that trial judge had erred in holding that the lease was continued by the terms of the unitization agreement. The Court of Appeal concluded that this was an ordinary commercial contract and that the Court must give effect to its terms. The agreement provided that payments under the unitization agreement were effective to deem production on the leased lands. The fact that some payments were late was not significant since the lease did not provide for automatic termination; the default clause was evidence of that and the default clause seemed to allow the lessee the right to notice and the opportunity to cure a default. There had been no notice of default and ergo the deeming was effective.

Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

By Jonnette Watson Hamilton

On June 4, 2010

In Arbitration, Corporate / Commercial, Supreme Court of Canada

PDF version: Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

Case considered: Yugraneft Corporation v. Rexx Management Corporation, 2010 SCC 19

An Alberta company, Rexx Management Corporation, was ordered to pay an almost $1 million US arbitration award in favour of a Russian company, Yugraneft Corporation. Yugraneft waited more than three years before applying to the Alberta Court of Queen’s Bench for recognition and enforcement of that arbitration award. When Yugraneft failed to gain recognition from the Court of Queen’s Bench, it appealed to the Alberta Court of Appeal and, when unsuccessful again, was granted leave to appeal and did appeal to the Supreme Court of Canada. Thirteen judges have now heard the case and all thirteen judges have agreed: the two-year limitation period in section 3 of Alberta’s Limitations Act applied to Yugraneft’s application for recognition and enforcement and thus Yugraneft acted too late. With that degree of unanimity, one has to wonder what all the fuss in the international commercial arbitration community has been about. The case was monitored closely as it wound its way through the courts and several arbitration institutions intervened at the Supreme Court of Canada.

In this post, after briefly setting out the facts and procedural history, I will focus on one of the issues dealt with by the Supreme Court, the threshold issue. The key decision by all the levels of court that considered the matter was the decision that domestic legislation imposing any kind of limitation period was applicable. I will then deal with the question of which limitation period: ten years, six years or two years? After this discussion of the case itself, I will comment on two matters. The first is the question of whether this case really is a case of public importance. The second is speculation about what action proponents of international commercial arbitration might take now, following their loss in the Supreme Court.