By: Nigel Bankes
PDF Version: Balancing Pool Must Fulfil its Statutory Obligations
Case Commented On: ENMAX PPA Management Inc v Balancing Pool, 2017 ABQB 718 (CanLII)
In this decision Justice Karen Horner has directed the Balancing Pool (BP) to fulfil its statutory obligations and reach a decision as to whether ENMAX had validly terminated its Keephills Power Purchase Arrangement (PPA) on the basis of the change of law clause in the PPA. Continue reading
By: Jassmine Girgis
PDF Version: Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd, 2017 ABCA 378: Fraud and Limitation of Liability Clauses
Case Commented On: Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd, 2017 ABCA 378 (CanLII)
This is a case about the legal test for civil fraud and whether a limitation of liability clause in a contract can and should exclude liability for fraud. The Alberta Court of Appeal allowed the appeal of the summary judgment and sent it to trial (see earlier Ablawg posts about lower court decisions here and here).
A court can only find fraud after weighing the evidence and applying the proper legal test. Assuming there is fraud, the court will then have to determine whether a proper interpretation of the exclusion of liability clause excludes fraud. If so, can a party that has engaged in fraud be allowed the benefit of the clause? In my opinion, it cannot, as doing so would be contrary to public policy and it would breach the duties of honest performance and good faith articulated by the Supreme Court in Bhasin v Hrynew, 2014 SCC 71 (CanLII). Continue reading
By: Fenner L. Stewart
PDF Version: Orphan Well Association v Grant Thornton Limited: What’s at Stake in Redwater
Case Commented On: Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124 (CanLII) (leave granted)
This week, the Supreme Court of Canada (SCC) granted leave to the Alberta Energy Regulator (AER) to hear its appeal of Orphan Well Association v Grant Thornton Limited (Redwater) (for more on the Redwater decision, see Nigel Bankes’ post). The Court of Appeal’s decision in Redwater has punched a hole in the AER’s program for ensuring that licencees of oil and gas wells have the capital necessary to satisfy their reclamation and abandonment obligations. The ruling effectively allows trustees in bankruptcy to disclaim worthless assets (e.g., non-producing wells where the abandonment process is not yet complete), while selling valuable assets (e.g., producing wells). Redwater grants secured creditors the best chance possible to be compensated from the bankrupt’s assets, while guaranteeing that Alberta’s oil and gas industry (and potentially taxpayers) pay the cost for the bankrupt’s reclamation and abandonment obligations. As things stand today, if Redwater is not reversed, even more wells will be orphaned, adding to the already alarming number on the books of the Orphan Well Association (OWA). Continue reading
By: Linda McKay-Panos
PDF Version: ABCA Agrees that Long Term Disability Plan was Bona Fide
Case Commented On: International Brotherhood of Electrical Workers, Local No. 1007 v Epcor Utilities Inc., 2017 ABCA 314 (CanLII)
In two earlier rather complex decisions (Epcor Utilities Inc. v International Brotherhood of Electrical Workers Local No. 1007 (McGowan Grievance) (2015), 22 CCPB (2d) 57, 2015 CanLII 62763 (AB GAA), application for judicial review dismissed; International Brotherhood of Electrical Workers Local 1007 v Epcor Utilities Inc., 2016 ABQB 574 (CanLII)), Epcor Utilities Inc.’s long term disability plan was held at first glance to discriminate based on age, but was defended because it was a legitimate and genuine (bona fide) pension plan. In an earlier post, I described the lower court’s focus on statutory interpretation of subsection 7(2) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).
After an appeal by the International Brotherhood of Electrical Workers, Local 1007 (IBEW), the ABCA (per Justices Ronald Berger, Frans Slatter and Jo’Anne Strekaf) upheld the ABQB’s ruling. Continue reading
By: Shaun Fluker
PDF Version: Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act
Case Commented On: Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 (CanLII)
Municipalities in Alberta are creatures of statute and thus subject to both the oversight of the Minister of Municipal Affairs (Minister) and Alberta courts. When the affairs in a municipality go offside, the Municipal Government Act, RSA 2000, c M-26 (MGA) provides mechanisms for bringing matters back into line. Municipal affairs in Thorhild County seem to have taken a turn for the worse several years ago, and led to the submission of a petition by electors asking the Minister to inquire into the conduct of the Thorhild municipal council and its chief administrative officer. The MGA provides the Minister with authority to conduct an inquiry into the affairs of a municipality or the conduct of municipal councilors. These powers are exercised on a fairly regular basis, with 33 entries listed on the government website since December 2009. The inspection into the affairs at Thorhild culminated in a Ministerial Order dismissing three members of the Thorhild council. On the eve of the recent municipal election, in Buryn v Alberta (Minister of Municipal Affairs) Madam Justice Dawn Pentelechuk quashed the Ministerial Order as unlawful for failing to afford the councilors procedural fairness.