ABLawg

Case considered: Bearspaw Petroleum Ltd v Encana Corporation, 2010 ABQB 225

PDF version: Yes folks the language of the habendum does matter

In this decision Justice Terry McMahon held that a petroleum and natural gas lease that provides for continuation at the end of its primary term where leased substances are “producible” will be continued where the lessee has drilled a well that has discovered natural gas in commercial quantities; the lease will be continued even though that well has not been tied in and is therefore not capable of actual production. The decision also offers a comment on implied and express covenants to market.

The rule of capture is not the only no liability rule in the oil and gas business

By Nigel Bankes

On April 16, 2010

In Intervenors and Standing, Oil & Gas

Case considered: Hunt Oil Company of Canada Inc v. Galleon Energy Inc, 2010 ABQB 212

PDF version: The rule of capture is not the only no liability rule in the oil and gas business

This decision confirms that where B intervenes in an ERCB (Energy Resources Conservation Board) application commenced by C and the result of that intervention is that C incurs delays in being able to achieve increased levels of oil or natural gas production, C has no cause of action against B for damages that C suffers as a result of the delay. Furthermore, any effort by C to use the courts to effect a recovery from B may be an abuse of process.

Ontario Court of Appeal confirms the exclusive jurisdiction of the Ontario Energy Board in relation to natural gas storage rights

By Nigel Bankes

On April 14, 2010

In Oil & Gas

Case considered: Snopko v Union Gas Ltd, 2010 ONCA 248

PDF version: Ontario Court of Appeal confirms the exclusive jurisdiction of the Ontario Energy Board in relation to natural gas storage rights

Gas storage schemes offer the opportunity to take maximum advantage of existing pipeline infrastructure. Storage also helps provide security of supply and extra deliverability at times of peak demand. While some storage remains regulated as a public utility the general trend is to deregulate storage where there is adequate competition. In some provinces pore space for natural gas storage is principally publicly owned (and then acquired by private operators by way of lease) as in British Columbia and Alberta and in other provinces as in Ontario the pore space is largely privately owned as in the facts of this case.

In either case there may be a need to deal with holdout problems and there will always be the question of how to compensate the private pore space owner for the use of the storage rights. That is what was at issue in this case; and we can expect this issue to become more contentious as gas storage increases in value.

From Legare to Morelli: the prioritization of privacy

By Orlagh O'Kelly

On April 12, 2010

In Constitutional, Criminal

Cases considered: R. v. Legare, 2009 SCC 56; R. v. Morelli, 2010 SCC 8

PDF version: From Legare to Morelli: the prioritization of privacy

A few months ago, the Supreme Court of Canada ordered the retrial of an Alberta man acquitted on the criminal offence of luring a child contrary to s.172.1(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 in R. v. Legare, 2009 SCC 56. Writing for a unanimous Court, Justice Morris Fish rejected the trial judge’s unduly restrictive construction of the offence. Instead, the offence was classified as “inchoate” (at para. 25), making it unnecessary to recast the elements into the traditional compartments of mens rea and actus reus. The Court held that the offence of luring requires proof that the accused had the subjective intention to facilitate (not to commit) a secondary offence and that intention need not be objectively capable of facilitating the offence. The judgment gave teeth to the remedial provision designed to combat the risks of sexual exploitation of children through the Internet. Engaging in two sexually explicit chats with a 12 year old girl may be enough to establish that the accused communicated by computer for the purpose of facilitating sexual touching.

Court Addresses the Duty of a University to Assist a Professor who was Seeking Information Related to his Teaching

By Linda McKay-Panos

On April 7, 2010

In Privacy

Case considered: University of Alberta v. Alberta (Information and Privacy Commissioner), 2010 ABQB 89

PDF version: Court Addresses the Duty of a University to Assist a Professor who was Seeking Information Related to his Teaching

In Alberta, universities are subject to the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 (“FOIPA“). University of Alberta professor Dr. Mikhail Kovalyov applied to the University for access to two kinds of records (but only the first kind of record was the subject of the court case). His original access to information request asked for information pertaining to his proposal for changes to a math course provided to the Chair and Associate Chair of the Mathematical and Statistical Sciences Department (“Math Department”); in particular, he asked for “written complaints, notes of oral complaints and any and all other documentation including any email between the Chair and Associate Chair or anyone else pertaining to this matter” (at para. 2). The University asked for clarification of the request, and Dr. Kovalyov replied with additional information, including a CD containing an audio-recording of a conversation between unidentified individuals discussing the math course and related complaints. The University wrote to Dr. Kovalyov, replying that it understood that Dr. Kovalyov was also requesting the documents the Chair referred to at the end of the audio-record, as well as all other documents, emails, notes, phone records pertaining to any information related to it, including information about the identification of the person from the very top of the University that the Chair referred to in the recorded conversation. Dr. Kovalyov did not reply to the University’s clarification letter.