Category: Bankruptcy and Insolvency Page 4 of 6

The Power of a Trustee in Bankruptcy to Disclaim Unproductive Oil and Gas Properties and the Implications for the AER’s Liability Management Program

On June 17, 2016

In Bankruptcy and Insolvency, Constitutional, Oil & Gas

By: Nigel Bankes

PDF Version: The Power of a Trustee in Bankruptcy to Disclaim Unproductive Oil and Gas Properties and the Implications for the AER’s Liability Management Program

Case commented on: Redwater Energy Corporation (Re), 2016 ABQB 278 (CanLII)

In a much anticipated decision Chief Justice Neil Wittmann has concluded that there is an operational conflict between the abandonment and reclamation provisions of the province’s Oil and Gas Conservation Act, RSA 2000, c O-6 (OGCA) and Pipeline Act, RSA 2000, c P-15 and the federal Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA). Thus, a trustee in bankruptcy is free to pick and choose from amongst the assets in the estate of the bankrupt by disclaiming unproductive oil and gas assets even where (and especially so) those assets are subject to abandonment orders from Alberta’s oil and gas energy regulator, the Alberta Energy Regulator (AER). As a result, the value of the bankrupt’s productive assets is preserved for the benefit of secured creditors. AER abandonment orders do not bind a trustee with respect to the disclaimed properties and do not constitute costs of administration of the bankrupt’s estate. Since the trustee has no responsibility for disclaimed assets, the trustee should be in a position to transfer non-disclaimed producing assets to a third party purchaser without objection from the AER on the basis of any deterioration in the liability rating associated with the unsold non-producing assets. If either the AER or the Orphan Well Association (OWA) carries out the abandonment of the disclaimed assets such costs may constitute a provable claim in bankruptcy but, as a general creditor, the AER/OWA would likely only recover cents on the dollar.

The practical effect of this decision is that the AER’s authority to enforce abandonment orders at the cost of the licensee is unenforceable at precisely the time when the AER most needs to be able to exercise that power i.e. when the licensee is insolvent.

Clarion Call for Consistent Statute Interpretation

By Cliff Shaw, Q.C.

On October 8, 2013

In Bankruptcy and Insolvency

PDF Version: Clarion Call for Consistent Statute Interpretation

Case commented on: Piikani Energy Corporation (Re), 2013 ABCA 293, rev’g 2012 ABQB 187

This Alberta Court of Appeal decision (per Justices Frans Slatter, Patricia Rowbotham, and Barbara Lea Veldhuis) came to my attention as a preferences case under section 95 of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”). The weightiness of the analysis reversing Justice R.A. Graesser’s conclusion of a “non-arm’s length” relationship between the debtor corporation Piikani Energy Corporation and the two payees 607385 Alberta Ltd. (“607”) and Dale McMullen made the insolvency and preferences issues irrelevant.

Indalex: Priority of Provincial Deemed Trusts in a CCAA Restructuring

By Jassmine Girgis

On March 6, 2013

In Bankruptcy and Insolvency, Supreme Court of Canada

PDF version: Indalex: Priority of Provincial Deemed Trusts in a CCAA Restructuring

Case considered: Sun Indalex Finance, LLC et al v United Steelworkers et al, 2013 SCC 6.

Introduction

On February 1, 2013, Supreme Court of Canada (“SCC” or “Court”) released its much awaited decision, Sun Indalex Finance, LLC et al. v United Steelworkers et al. The case involved a company, Indalex, that was pursuing restructuri ng proceedings under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”). Prior to its restructuring, Indalex had been failing to meet its employer contribution obligations to the company’s pension plan and when the pension plan was wound up, there was a deficiency in the funds.

Whoever heard of such a thing? A Crown oil and gas lease an intangible form of personal property?

By Nigel Bankes

On March 1, 2013

In Bankruptcy and Insolvency, Oil & Gas

PDF version: Whoever heard of such a thing? A Crown oil and gas lease an intangible form of personal property?

Case considered: Kasten Energy Inc v Shamrock Oil and Gas Ltd, 2013 ABQB 63.

In this case Justice Lee granted Kasten’s application to appoint a receiver\manager over all of the assets of Shamrock, including Shamrock’s Crown oil and gas lease. Kasten was a secured creditor of Shamrock claiming under a general security agreement (GSA) over Shamrock’s present and after acquired personal property. In the course of making his decision to appoint a receiver Justice Lee concluded that Shamrock’s lease was an intangible form of personal property. Kasten brought its application for the appointment of a receiver\manager Kasten under section 13(2) of the Judicature Act, RSA 2000, c J-2 rather than under section 65(7) of the Personal Property Security Act, RSA 2000, c P-7 (PPSA).

Issuance of a Notice of Abandonment under Clause 1201 of CAPL is an Attempt to Exercise a “Right to Remedy” within the Meaning of the Typical Stay Provisions of a Receivership Order

By Nigel Bankes

On September 13, 2012

In Bankruptcy and Insolvency, Oil & Gas

PDF version: Issuance of a notice of abandonment under clause 1201 of CAPL is an attempt to exercise a “right to remedy” within the meaning of the typical stay provisions of a Receivership Order

Case Commented On: Baytex Energy Ltd. v Sterling Eagle Petroleum Corporation, 2012 ABQB 539

The Facts

Baytex and Sterling held 50% working interests in certain properties by way of various agreements of 1995 and 1996. The properties were also subject to the terms of the CAPL Operating Procedure. There were a number of producing wells on the joint lands and four non-producing wells. Sterling was placed in receivership in June 2011 and the terms of the Receivership Order were brought to the attention of Baytex in August 2011. Revenues from the producing wells continued to be paid to the Receiver. The Order, conventionally, provided that: