By: Michael Ilg
Case Commented on: South West Terminal Ltd v Achter Land, 2023 SKKB 116 (CanLII)
PDF Version: Thumbs Up, Bruh – Informality and the New Art of Contract Formation
Saskatchewan grain contracts rarely attract international media attention, but an exception occurred recently after a judge held a farmer liable for damages under a contract entered into by emoji. It was not even a particularly cute or imaginative emoji, simply a humdrum ‘thumbs up’ 
By: Nigel Bankes
Case commented on: TotalEnergies EP Canada Ltd v Suncor Energy Inc, 2023 ABKB 59 (CanLII).
PDF Version: Total Claims that its ROFR Rights Were Violated in the Sale of Teck’s Interest in the Fort Hills Project
Suncor, Total, and Teck all owned interests in the Fort Hills Oilsands Project (54%, 24.4%, and 21.5%, respectively). Teck agreed to sell its interest in the project to Suncor. The sale triggered a right of first refusal (ROFR) in the relevant agreement. The sale included some of Teck’s other assets (the other assets) but the sale was also subject to a condition precedent that required Teck to vote in favour of a proposed operating budget for the Project (the budget approval covenant). Suncor’s proposed operating budget had been hotly contested among the three partners for a number of years. Total and Teck had repeatedly voted against Suncor’s budget proposals, with the result that those budgets were not approved and operations had to revert to the last approved budget of 2021. Continue reading
By: Nigel Bankes
Case commented on: Schnell v Stene (Heidinger Estate), 2022 SKQB 146 (CanLII)
PDF version: Novel Form of Agreement to Reserve Surface Rights Payments
It is not uncommon for a vendor of agricultural lands in western Canada to seek to ensure that the vendor will continue to receive the benefit of surface rights payments payable under the terms of surface rights leases or right of entry orders. Perhaps the most common technique to achieve this result is by way of an agreement to assign rents. This will be effective so long as one is confident that such an agreement creates an interest in land that can be protected by way of caveat. In some jurisdictions legislation deems such an agreement to give rise to an interest in land, (see, for example, Law of Property Act, RSA 2000, c L-7 at s 63(1)(b)) whereas in other jurisdictions the point may be more debatable: (e.g. Alberta prior to the 1985 amendment to the Law of Property Act: see Webster v Brown, 2004 ABQB 321 (CanLII) and Canadian Crude Separators Inc. v Mychaluk, 1997 CanLII 14841 (AB QB), [1998] 1 WWR 545. Continue reading
By: Jassmine Girgis
PDF Version: Must Creditors be “Analogous to Minority Shareholders” to Obtain Standing for Oppression?
Case Commented On: Pricewaterhouse Coopers Ltd v Perpetual Energy Inc, 2021 ABCA 16 (CanLII)
A creditor seeking an oppression remedy must qualify as a “proper person” to make an application. While deciding whether to grant standing, courts have at times maintained that a creditor must be in a position analogous to a minority shareholder. In Pricewaterhouse Coopers Ltd v Perpetual Energy Inc, 2021 ABCA 16 (CanLII) (Perpetual Energy), the Alberta Court of Appeal objected to the shorthand of that analogy while appearing to confirm its substance. This post will address when and how creditors can get complainant status under the oppression remedy, and the effect of the comment in Perpetual Energy on that understanding.
By: Nigel Bankes
PDF Version: Consent Provisions in Long-Term Relational Contracts
Case Commented On: Apache North Sea Ltd v Ineos FPS Ltd, [2020] EWHC 2081 (Comm)
The drafters of long-term relational contracts often have to deal with the uncertainties of future developments. One technique for doing so is to accord one party to the contract (A) a power to propose some development or other while affording to the other party (B) a power to withhold its consent to the development, but disciplining the consent power by stipulating that B cannot unreasonably withhold its consent. Such provisions have long been common in the landlord and tenant context but they are also common in other commercial contracts, including oil and gas contracts. For a recent Canadian example see IFP Technologies (Canada) Inc v EnCana Midstream and Marketing, 2017 ABCA 157 (CanLII) and my post on that decision here.
