Author Archives: Fenner Stewart

About Fenner Stewart

B.A. (University of PEI), J.D. (UBC), LL.M. (UBC), Ph.D. (York). Assistant Professor. Please click here for more information.

“Not One Cookie Cutter Citizen”: A Review of ABlawg Posts on Some of Justice Sheilah Martin’s Decisions

By: Jennifer Koshan, Jonnette Watson Hamilton, Fenner Stewart, and Lisa Silver

PDF Version: “Not One Cookie Cutter Citizen”: A Review of ABlawg Posts on Some of Justice Sheilah Martin’s Decisions

Matter Commented On: Justice Sheilah Martin’s Nomination to the Supreme Court of Canada

The Faculty of Law at the University of Calgary is thrilled that one of our own – Justice Sheilah Martin – has been nominated to the Supreme Court of Canada. Many of us watched her question and answer session with Parliamentarians on 5 December 2017, and were pleased to see her fierce intelligence, compassion and humour shine through. In one of the most quoted lines from her remarks, she said that she hoped her legacy would be that she was a deep thinker, a good listener, and had really great hair. The title of this post, “Not One Cookie Cutter Citizen”, is also taken from Justice Martin’s remarks during the hearing, when she was making a point about the importance of thinking about the differential impact of the law on people with different identities and needs. A review of ABlawg posts on decisions written by Justice Martin during her tenure as a judge in Alberta reveals her concern for the impact of the law on individuals and the public. This post will highlight four of Justice Martin’s decisions that we have blogged on over the years, in areas ranging from constitutional and health law, to civil litigation and vexatious litigants, to bankruptcy law and oil and gas assets, to homicide and sexual assault law. We also provide a list of other posts on her judgments for those who are interested in further reading on Justice Martin’s legacy as a judge in Alberta.  Continue reading →

Orphan Well Association v Grant Thornton Limited: What’s at Stake in Redwater

By: Fenner L. Stewart

PDF Version: Orphan Well Association v Grant Thornton Limited: What’s at Stake in Redwater

Case Commented On: Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124 (CanLII) (leave granted)

I. Introduction

This week, the Supreme Court of Canada (SCC) granted leave to the Alberta Energy Regulator (AER) to hear its appeal of Orphan Well Association v Grant Thornton Limited (Redwater) (for more on the Redwater decision, see Nigel Bankes’ post). The Court of Appeal’s decision in Redwater has punched a hole in the AER’s program for ensuring that licencees of oil and gas wells have the capital necessary to satisfy their reclamation and abandonment obligations. The ruling effectively allows trustees in bankruptcy to disclaim worthless assets (e.g., non-producing wells where the abandonment process is not yet complete), while selling valuable assets (e.g., producing wells). Redwater grants secured creditors the best chance possible to be compensated from the bankrupt’s assets, while guaranteeing that Alberta’s oil and gas industry (and potentially taxpayers) pay the cost for the bankrupt’s reclamation and abandonment obligations. As things stand today, if Redwater is not reversed, even more wells will be orphaned, adding to the already alarming number on the books of the Orphan Well Association (OWA). Continue reading →

Risk Allocation in Operating Agreements for Unconventional Resources

By: Fenner Stewart and Tony Cioni

PDF Version: Risk Allocation in Operating Agreements for Unconventional Resources

Model contracts play a principal role in reducing transaction costs. They offer parties a series of rules, which allocates risk so that delays, disagreements, over-expenditures, and under-capitalizations can be managed (or avoided altogether). The best model contracts are highly responsive, quickly adapting to new realities. Accordingly, top drafters are pressed to doggedly re-evaluate whether or not their model rules are optimal in light of the ever-changing nature of law and technology.

Modern hydraulic fracturing is a disruptive technology that shifts the incentives within oil and gas joint venture projects. Drafters are adjusting their contracts to adapt. Experimentation with model rules is presently occurring in jurisdictions such as the United States, Canada and Australia, where unconventional resources abound.

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Chevron Corp. v Yaiguaje: Judicial Activism and Cross Border Complexity

By: Fenner L. Stewart

PDF Version: Chevron Corp. v Yaiguaje: Judicial Activism and Cross Border Complexity

Case Commented On: Chevron Corp. v Yaiguaje, 2015 SCC 42

In 2013, Ecuador’s highest court held that Chevron was liable to pay US$9.51 billion to forty-seven indigenous Ecuadorian villagers (the plaintiffs). Prior to this final judgment, in 2012, the plaintiffs started an action to seize Chevron Canada’s CAN$15 billion in assets to satisfy the judgment. Chevron Canada’s assets include its stakes in the Athabasca Oil Sands, the Hibernia Field, the Hibernia South Extension, the Hebron Field, the Duvernay Shale Field, and the Kitimat LNG Project.

In Chevron Corp. v Yaiguaje, the Supreme Court of Canada (SCC) addressed two questions. First, must there be a real and substantial connection between the defendant (or the dispute) and Ontario before an Ontario court has jurisdiction to recognize and enforce a foreign judgment? The Court answered no. Second, can an Ontario court have jurisdiction over a foreign judgment debtor’s subsidiary when the subsidiary has no connection to the foreign judgement? The Court answered yes.

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Section 27 of the Surface Rights Act and the Potential Fallout of Non-Compliance

By: Fenner Stewart

PDF Version: Section 27 of the Surface Rights Act and the Potential Fallout of Non-Compliance

Legislation Commented On: Surface Rights Act, RSA 2000, c S-24

Section 27 of Alberta’s Surface Rights Act obliges operators to notify landowners of the opportunity to renegotiate leases, but provides no enforcement measures for operator non-compliance. This post explores the potential fallout.

1. Introduction

Alberta’s Surface Rights Act helps to encourage the negotiation of surface leases between landowners and operators. Whether granting a producer the right of entry to drill for oil and gas or granting an energy company the right to place a pipeline or power transmission line across one’s property, many landowners would not allow such operators access to their land if the force of law did not compel the right of entry. In mining and drilling cases, the common law recognizes an implied right of entry in conjunction with the granting of mineral rights. In pipeline and transmission line cases, the Crown can exercise its power of expropriation to take private property for public use. In these situations, the legal authority for such rights of entry is not dependent on any power granted by the Surface Rights Act.

The primary purpose of the Surface Rights Act is to avoid litigation when an obstinate landowner rejects all reasonable offers for compensation in exchange for access to their property. When negotiations breakdown, the Surface Rights Board intervenes and establishes the terms, including compensation, of the surface lease. By offering an alternative to a privately negotiated lease, the Act promises to break deadlocks between lessor-landowners and lessee-operators resulting in expedited energy projects. Further, it is hoped that by providing an alternative to the more adversarial judicial system, more amicable relations between landowners and operators will develop even in less than ideal circumstances.

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