Cases Considered: 365733 Alberta Ltd. v. Tiberio, 2008 ABCA 341
The Alberta Court of Appeal issued a brief memorandum of judgment unanimously affirming the June 2008 judgment of Madam Justice Adele Kent in 365733 Alberta Ltd. v. Tiberio, 2008 ABQB 328. I previously commented on this case in my post on Justice Kent’s decision, “Challenging Purchasers’ Ability to Obtain Specific Performance of Agreements for the Purchase and Sale of Land.”
The National Post recently ran a feature choosing different election theme songs for the federal political parties (see http://www.nationalpost.com/news/story.html?id=822081). Critics of Alberta’s dismal turnout on voting day (52.9% of eligible voters) might suggest that the election itself deserved its own theme song in this province – Pink Floyd’s “Comfortably Numb” comes to mind, or perhaps “I’m Only Sleeping” by the Beatles (I am dating myself here – other suggestions welcome). This complacence is troubling in light of the fact that many issues of potential concern to Albertans were discussed during the election, some of which we explored in constitutional law this term.
Cases Considered: Provident Energy Ltd. v. Alberta (Utilities Commission), 2008 ABCA 316
PDF Version: Obtaining Leave to Intervene in a Leave to Appeal Application
This decision deals with a unique and interesting point of civil procedure. It answers the following question: what is the test for obtaining leave to intervene in a leave to appeal application before Alberta’s Court of Appeal?
Cases Considered: Brookfield Bridge Lending Fund Inc. v. Vanquish Oil and Gas Corporation, 2008 ABQB 444
PDF Version: When is a non-operator entitled to a constructive trust over the operator’s own assets?
In this case Justice Bruce McDonald ruled that a joint operator may be entitled to a constructive trust remedy over the assets of an operator, where the operator is in receipt of production revenues attributable to the joint operator and where the operator fails to preserve an amount representing those monies in its commingled bank account. As a result, the joint operator was allowed to take priority over the interests of both secured and unsecured creditors.
Case Considered: Solara Exploration Ltd v. Richmount Petroleum Ltd., 2008 ABQB 596
PDF Version: When does a “participant” earn under the terms of a farmout and participation agreement?
In this decision Justice Sheilah Martin concluded that a participant in a farmout and participation agreement did not earn an interest in the farmout property when it elected to go non-consent on an operation to frac a particular formation, even when that operation was proposed after the parties had already installed a well head, outlet valve and production tubing. However, Justice Martin went on to hold that the farmor was estopped from denying that the participant had earned in the circumstances of the particular case. The decision is an important one for several reasons. It is a first decision on the definition of “completion” in the 1990 CAPL operating procedure, but it also serves to draw attention to the vulnerability of a “participant” in a farmout and participation agreement, especially where the farmor (as here) is wearing multiple hats and serving as both farmor and as operator for the purposes of the test well to which the participant is contributing. The case also highlights some of the difficulties associated with borrowing definitions from other agreements.
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