Lifting the Stay to Allow the CAPL Operator Replacement Provisions to Run their Course

By: Nigel Bankes

PDF Version: Lifting the Stay to Allow the CAPL Operator Replacement Provisions to Run their Course

Case Commented On: Firenze Energy Ltd v Scollard Energy Ltd, 2018 ABQB 126 (CanLII)

In this decision Justice Corina Dario granted Firenze’s application to lift a stay of proceedings imposed as part of a receivership order pertaining to Scollard in order to allow Firenze to issue a notice or notices with respect to the replacement of Scollard as operator of a number of oil and gas properties subject to the 2007 CAPL Operating Procedure. This decision, together with Justice Macleod’s earlier decision in Bank of Montreal v Bumper Development Corp, 2016 ABQB 363 (CanLII) (commented on here), calls into question the proposition that it will be difficult to replace an operator under the CAPL operating agreements once a receivership order is in place. Continue reading →

BIA Preference Payments: Evidence Rebutting the Presumption must be Objectively Reasonable

By: Jassmine Girgis

PDF Version: BIA Preference Payments: Evidence Rebutting the Presumption must be Objectively Reasonable

Case Commented On: Gustafson (Re), 2018 ABQB 77 (CanLII)

Introduction

Legislation that governs fraudulent preferences applies if a debtor elects to pay only one or a few of his creditors and not the others, with the consequence of preferring certain creditors. These transfers are improper if they are made on the eve of the debtor’s bankruptcy. Preferences are governed provincially, by the Fraudulent Preferences Act, RSA 2000, c F-24, and federally, under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA). This case deals with the preference provisions in the BIA. Continue reading →

SCC Overturns ABCA Ruling on Mandatory Interlocutory Injunction re: Information on Media Outlet’s Website

By: Linda McKay-Panos

PDF Version: SCC Overturns ABCA Ruling on Mandatory Interlocutory Injunction re: Information on Media Outlet’s Website

Case Commented On: R v Canadian Broadcasting Corp., 2018 SCC 5 (CanLII) (“CBC SCC”)

The Supreme Court of Canada (SCC) recently overturned the Alberta Court of Appeal’s ruling on this case and reinstated the Alberta Court of Queen’s Bench decision. This case has been the subject of previous blog postings by my colleague, Hasna Shireen; see here, here and here. Continue reading →

Third-Party Constitutional Remedies to Unjust Law during Stays in Declarations of Invalidity

By: Nicholas Konstantinov

PDF Version: Third-Party Constitutional Remedies to Unjust Law during Stays in Declarations of Invalidity

Case Commented On: Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 (CanLII)

In Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 (CanLII), Justice W. P. Sullivan acknowledged that a third-party applicant may argue for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms against charges under section 88.1 of the Traffic Safety Act, RSA 2000, c T-6 [TSA], the administrative license suspension (“ALS”) regime. Despite the suspended declaration of section 88.1’s invalidity under section 52 of the Constitution Act, 1867, 30 & 31 Vict, c 3, an applicant may utilise the Court’s decision in Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 (CanLII) [Sahaluk I] (see here for a case commentary) as precedent for a constitutional exemption provided that he or she: 1) pled not guilty, 2) exhausted all statutory remedies, 3) demonstrated personal Charter right violations, and 4) passed the balance of convenience test.  Continue reading →

Construction Disputes in Major Infrastructure Projects: Guidance from the United Kingdom as Canada moves to Statutory Dispute Adjudication

By: Rudiger Tscherning

PDF Version: Construction Disputes in Major Infrastructure Projects: Guidance from the United Kingdom as Canada moves to Statutory Dispute Adjudication

Statutes Commented On: Construction Lien Amendment Act, 2017 (Ontario); Housing Grants, Construction and Regeneration Act 1996 (England)

Introduction

In the delivery of infrastructure projects, construction disputes give rise to delays and potential cost overruns. This is especially true for major projects in the energy and natural resources sector where the number of parties, cross-jurisdictional components, challenging locations and the scale of the construction works are all contributing factors to a fertile dispute environment. As a result, a specialist dispute resolution mechanism is needed that facilitates the expedited resolution of disputes in parallel to the continuation of the construction works. Statutory dispute adjudication provides parties with that specialist mechanism. It allows for a fast, project-accompanying alternative dispute resolution mechanism that results in an interim binding decision by an independent adjudicator. The intention of dispute adjudication is to de-escalate a dispute. The parties enter into mandatory negotiation of their dispute with the benefit of the adjudicator’s decision. Following the lead of the United Kingdom and elsewhere, Canada has recently taken steps towards introducing statutory dispute adjudication for the construction industry in this country. This post sheds light on those developments, outlines the key features of statutory dispute adjudication, and reflects upon what Canada can anticipate based upon the experience of the United Kingdom. Continue reading →