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Summary Judgment Not Available in a Farmout Case

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On May 15, 2019

In Oil & Gas

By: Nigel Bankes

PDF Version: Summary Judgment Not Available in a Farmout Case

Cases commented on: (1) Teine Energy Limited v Audax Investments Ltd, unreported oral judgment delivered from the bench October 2, 2018 (Transcript of Proceedings), (2) Teine Energy Limited v Audax Investments Ltd, unreported oral judgment delivered from the bench March 21, 2019 (ABQB), and (3) Teine Energy Limited v Audax Investments Ltd, 2019 ABQB 334 (ABQB Ruling on Costs)

Teine and Audax entered into a farmout agreement on November 24, 2016. The agreement took the form of a proposal from Teine (as the farmor) to Audax as the proposed farmee, which proposal Audax accepted. The agreement contemplated that in return for drilling the commitment well (or wells), Audax would earn a 100% interest in Taine’s Saskatchewan Crown petroleum and natural gas lease, subject to a 17.5% gross overriding royalty in favour of Teine. The agreement incorporated by reference the 1997 Canadian Association of Petroleum Landmen Farmout and Royalty Procedure.

The case turns on clauses 3 and 4 of the farmout agreement:

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Director Liability and the Workers’ Compensation Scheme: The Divergence Between Policy Goals and Outcomes

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On May 14, 2019

In Corporate / Commercial, Torts

By: Jassmine Girgis

PDF Version: Director Liability and the Workers’ Compensation Scheme: The Divergence Between Policy Goals and Outcomes

Case Commented On: Hall v Stewart, 2019 ABCA 98

The workers’ compensation scheme and its effect on directors’ personal liability for corporate torts is an area of law that pursues the right policy goals but fails to achieve those goals in its implementation.

This post is about directors’ personal liability, the interplay between the Workers’ Compensation Act, RSA 2000, c W-15 (Act) and common law, and the policy issues that arise from this scheme. When the workers’ compensation scheme is superimposed on the common law system, it immunizes the corporation for corporate torts while leaving directors open to suit if they do not purchase special coverage. Their liability is then determined by common law principles.

In Hall v Stewart, the director, Stewart, did not purchase additional insurance, leading the Court of Appeal to conclude he could be held personally liable for the tort of the corporation under the two-step Anns/Kamloops test (from Kamloops (City of) v Nielsen, 1984 CanLII 21 (SCC), [1984] 2 SCR 2). This post will discuss two issues arising from this decision; first, the policy issue this scheme engenders, which should have been addressed under the second step of the Anns/Kamloops test, and second, the influence of Nielsen Estate v Epton, 2006 ABCA 382 (CanLII), affm’g 2006 ABQB 21 (CanLII), on this decision, which the Court of Appeal did not apply.

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A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

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On May 8, 2019

In Constitutional, Criminal

By: Lisa Silver

PDF Version: A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

Case Commented On: R v Mills, 2019 SCC 22

Perhaps we, in the legal world, should not have been surprised by R v Mills, 2019 SCC 22, the most recent decision on privacy and the application of that concept in the s. 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Mills may be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

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In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

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On May 6, 2019

In Aboriginal

By: Sharon Mascher

PDF Version: In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

Case Commented On: William v British Columbia (Attorney General), 2019 BCCA 112 (CanLII)

On April 1, 2019, the British Columbia Court of Appeal (BCCA), in William v British Columbia (Attorney General) granted Chief Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation (the Applicants), a stay of an order allowing an exploratory drilling program in relation to the New Prosperity Mine Project to proceed pending the outcome of an application for leave to appeal to the Supreme Court of Canada (SCC). The application for leave to appeal relates to a petition for the judicial review of a Notice of Work Approval granted to Taseko Mines Limited (TML) by the Province of British Columbia on July 17, 2017 allowing the exploratory drilling work to proceed. Chief William’s petition for judicial review of the Approval was dismissed by a chambers judge (William v British Columbia, 2018 BCSC 1425 (CanLII)) who found that the Province’s decision was reasonable and that the Province’s consultation process and degree of accommodation had maintained the honour of the Crown. On March 1, 2019, the BCCA (William v British Columbia (Attorney General), 2019 BCCA 74 (CanLII)) agreed with the findings of the chambers judge and dismissed Chief William’s appeal.

In reaching a decision that the stay should be granted, and specifically that the Applicants have met the merits test, Justice Bruce Butler rejects TML’s argument that this is just another duty to consult case applying a long line of settled law. In so doing, Butler JA recognizes that the law relating to sufficiency of consultation and accommodation, the role of consent, and the justification analysis from Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII) is unsettled when proven s 35 Aboriginal rights are at issue.

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Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

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On May 3, 2019

In Aboriginal, Constitutional, Criminal

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11.

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