ABLawg

Legislation Commented On: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

Last week, Postmedia columnists Licia Corbella and Don Braid both set their sights on Bill C-69, the federal Liberal’s environmental law reform bill that proposes new impact assessment legislation and the replacement of the current National Energy Board with a new Canadian Energy Regulator. Ms. Corbella claimed that Bill C-69 is “so destructive it just might be the bookend to [the] disastrous and infamous National Energy Program.” Mr. Braid suggested that it poses a “grave danger” to the already beleaguered Trans Mountain pipeline and implored for the Bill to be “ritually slaughtered” by the Senate when it comes before it later this fall.

The problem is that Bill C-69 poses no such danger. In fact, the relevant transitional provision (s 182) makes clear that a project like Trans Mountain, whose assessment began under the current Canadian Environmental Assessment Act, 2012, SC 2012 c 19 s 52 (CEAA, 2012), would remain under that regime even if that assessment is not completed when the law comes into force. Unfortunately, almost all of Ms. Corbella and Mr. Braid’s assertions about Bill C-69, as well as those of the Canada West Foundation’s Martha Hall Findlay and former Conservative Party leadership candidate Rick Peterson, on which both columnists rely, do not withstand scrutiny.

How does a coffee shop conversation become a binding contract?

By Shaun Fluker

On September 20, 2018

In Contracts

By: Shaun Fluker

PDF Version: How does a coffee shop conversation become a binding contract?

Case Commented On: Schluessel v Margiotta, 2018 ABQB 615 (CanLII)

How many times have you walked into a Starbucks looking forward to a coffee break only to find all seats occupied by people working on a laptop? Their cup is empty, and has been for hours. Starbucks revolutionized the industry in many ways, certainly one of which was that the coffee shop became a social destination and later a business office. Free wifi and highly caffeinated beverages will do that. The contractual dispute which is the focus of this ABlawg post arose out of a conversation at one of these tables at a Starbucks. Schluessel v Margiotta is a cautionary tale to take care in what you say to others in coffee shops – it may cost you a lot of money! The case is also an illustration of the difficulties in legal reasoning which face a trial judge presented with a dispute over whether an oral contract has formed.

When is a Registered Owner of Land not an “Owner” under Alberta’s Builders’ Lien Act?

By Jonnette Watson Hamilton

On September 19, 2018

In Construction

By: Jonnette Watson Hamilton

PDF Version: When is a Registered Owner of Land not an “Owner” under Alberta’s Builders’ Lien Act?

Case Commented On: Georgetown Townhouse GP Ltd v Crystal Waters Plumbing Company Inc, 2018 ABQB 617

As Master Prowse explains, this case involves an often-litigated issue: when can an owner of land, who knows that work is being done on the land, defeat the liens of unpaid contractors because the owner is not within the definition of “owner” in section 1(j) of the Builders’ Lien Act, RSA 2000, c B-7? Master Prowse’s decision offers a succinct and up-to-date answer to that question in one of three common contexts, and advice on where to begin researching the answer in the other two contexts.

A Vesting Order Cannot Create Title

By Nigel Bankes

On September 18, 2018

In Energy, Property

By: Nigel Bankes

PDF Version: A Vesting Order Cannot Create Title

Case Commented On: Quicksilver Resources Canada Inc (Re), 2018 ABQB 653

Quicksilver Resources (QRCI) owned oil and gas assets and associated infrastructure in the Horn River basin. In 2011, QRCI joined the Fortune Creek Partnership (FCP) and agreed, by way of a Contribution Agreement, to contribute certain infrastructure assets to the FCP. Those assets were described as follows:

The “Assets” are set forth on Exhibit 1 (Maxhamish Pipeline), Exhibit 2 (Compression Assets) and shall include the following:

(a) all permits, licenses, authorizations, surface rights (including easements, licenses of occupation and rights-of-way), and buildings, structures, appurtenances and tangible depreciable property situate thereon that are used or useful in connection with the operation of the Maxhamish Pipeline; but

(b) specifically exclude any rights or interests in or relating to petroleum or natural gas or the production thereof, or in wells or wellsite facilities, or in the operation of the foregoing. [The emphasis is supplied by Justice Jones.]

The FCP became insolvent in 2016 and MNP was appointed as Trustee in Bankruptcy. QRCI and its subsidiaries followed FCP into insolvency and obtained protection under the Companies Creditors Arrangement Act, R.S.C. 1985, c C-36 (“CCAA”) and a stay of proceedings. FTI Consulting was appointed as the Monitor of QRCI.

In March 2016 QRCI entered into an Asset Purchase Agreement (APA) with Rockyview Resources Inc (RRI). Under the CCAA, the APA required the approval of the Court and that approval was granted in the ordinary course in April 2016 in the form of an Approval and Vesting Order.

A dispute then arose as to whether certain infrastructure assets were included in the APA. These “disputed assets” are described as follows:

a metering station and building (the “Metering Station”) located at the downstream or outlet end of the Maxhamish Pipeline, the location being legally described as a-59-A/094-O-14 in the Province of British Columbia;
a pig receiving station (the “Pig Receiver”) at the same location; and,
a BC Oil and Gas Commission (“OGC”) Facility License for the Metering Station (the “Metering Station License”).

QRCI sought a declaration to the effect that RRI had no interest in the disputed assets.

There were three issues to resolve: (1) were the disputed assets covered by the partnership Contribution Agreement such that QRCI could not have sold them to RRI; (2) were the disputed assets included in the APA, and (3) did the Approval and Vesting Order give title of the disputed assets to RRI notwithstanding the conclusions to the first two questions.

The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

By Jonnette Watson Hamilton

On September 17, 2018

In Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

Case Commented On: Alberta Treasury Branches v Hawrysh, 2018 ABQB 475 (CanLII) (Hawrysh #1) and Alberta Treasury Branches v Hawrysh, 2018 ABQB 618 (CanLII) (Hawrysh #2)

The August 20^th decision of Justice Peter Michalyshyn in Hawrysh #2 was step two of the now usual two-step process adopted by the Alberta Court of Queen’s Bench in Hok v Alberta, 2016 ABQB 651 (CanLII) to deal with vexatious litigants. Step one was taken two months earlier in Hawrysh #1. The two decisions are interesting for at least three reasons. First, they show just how quickly the Court of Queen’s Bench of Alberta now acts to restrict access to the courts by someone whose litigation behaviour is judged to be vexatious. Second, very little of the behaviour found to be abusive in these cases occurred in the courtroom or in documents filed with the court. Third, and most importantly, the litigant’s use of Pintea v Johns, 2017 SCC 23 (CanLII), [2017] 1 SCR 470 and the Canadian Judicial Council “Statement of Principles on Self-represented Litigants and Accused Persons (2006)” was held to be an independent indicia of abusive litigation justifying the imposition of court access restrictions.

These cases also appear to provide further examples of what Dr. Julie Macfarlane of the National Self-Represented Litigants Project (NSRLP) wrote about in her September 6^th blog post, “Inequality and Discrimination in the Justice System” – that, in her words, “SRLs are “the other” in the justice system.” Specifically, Dr. Macfarlane noted that the NSRLP Research Reports show that most self-represented litigants “[a]re penalized for errors that are seen as intentional mischief-making,” and “[p]ushback is regarded as bad behaviour that must be punished.”

Bill C-69’s Detractors Can Blame Harper’s 2012 Omnibus Overreach (Blog Edition)

How does a coffee shop conversation become a binding contract?

When is a Registered Owner of Land not an “Owner” under Alberta’s Builders’ Lien Act?

A Vesting Order Cannot Create Title

The Increasing Risk of Conflating Self-Represented and Vexatious Litigants