The Sequoia Bankruptcy Part 1: The Motion to Strike and the Interveners

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Cases Commented on: PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2020 ABQB 6 (CanLII) and PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2020 ABCA 417 (CanLII)

The Orphan Well Association (OWA) was back in court on December 10, 2020 for the appeal of PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2020 ABQB 6 (CanLII). The OWA is concerned about the interpretation of the Supreme Court’s decision in Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 (CanLII) (Redwater), and specifically whether the finding that abandonment and reclamation obligations (ARO) are not “provable claims” in bankruptcy implies that ARO are not “liabilities” for the purposes of determining the financial situation of a corporation and hence whether a corporation is solvent.

The Redwater decision concluded that a trustee for a bankrupt oil and gas company had to use the bankrupt estate’s assets to pay for the ARO of non-producing wells, and could not “disclaim” them. Redwater started as a bankruptcy case under the name Redwater Energy Corporation (Re), 2016 ABQB 278 (CanLII). (I recommend Nigel Bankes’ earlier posts on the Queen’s Bench decision and the Court of Appeal decision in Redwater, and Jassmine Girgis’s post on the Supreme Court decision for a complete background.)

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“Textbook Climate Denialism”: A Submission to the Public Inquiry into Anti-Alberta Energy Campaigns

By: Martin Olszynski

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Matter Commented On: Public Inquiry into Anti-Alberta Energy Campaigns

After two deadline extensions and an additional $1 million dollars, Premier Jason Kenney’s Public Inquiry into Anti-Alberta Energy Campaigns is entering its final stretch (for previous ABlawg posts, see here, here, here, and here). Back in October of 2020, I decided to seek, and was granted, standing to participate in the Inquiry. As has been my practice in such matters, what follows is my submission, dated December 15, 2020, modified only for formatting purposes. Links to reports provided to me by the Commissioner are to the Inquiry’s website, which has recently been updated.

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The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

By: Kirk Lambrecht Q.C.

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Decision Commented On: Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 (CanLII), reversing Normtek Radiation Services Ltd v Alberta (Environmental Appeals Board), 2018 ABQB 911 (CanLII), which upheld Normtek Radiation Services Ltd. v Director, Red Deer-North Saskatchewan Region, Alberta Environment and Parks, re: Secure Energy Services Inc. (2 March 2018), Appeal No. 16-024-D (AEAB)

This brief case comment offers a proposition on the cause of a yawning gap between (i) purposes defined in section 2 of the Environmental Protection and Enhancement Act (EPEA); and (ii) practices of the Environmental Appeal Board (EAB) and the Directors under EPEA.

The proposition advanced here is that the phrase “directly affected” in EPEA has been, for decades, interpreted and applied by the EAB and Directors under EPEA in such a way as to avoid Ministerial oversight of Directors’ decisions regarding the environment. In Normtek, the Court of Appeal attempted to correct these practices. In the result, the Court remitted the matter of Normtek’s standing to appeal to the EAB back to the EAB for reconsideration in accordance with the reasons of the Court.

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Court of Appeal (England and Wales) Confirms High Court Decision on the Relationship Between a Farmout Agreement and an Operating Agreement

By: Nigel Bankes

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Decision Commented On: Apache North Sea Limited v Euroil Exploration Limited and Edison SPA, [2020] EWCA Civ 1397

In this decision, the Court of Appeal of England and Wales confirmed Judge Pelling’s decision in the High Court with respect to the drilling costs Apache was entitled to recover from Euroil under the terms of a farmout agreement (FOA) and its related joint operating agreement (JOA). I commented on Judge Pelling’s decision here and I refer readers to that earlier post for a more detailed statement of the facts, as well as references to Canadian decisions dealing with the relationship between an FOA and the JOA.

In that earlier post I suggested that the FOA at issue here would likely be denominated as a “farmout and participation agreement” in a Canadian context insofar as the drilling obligation was not a sole risk obligation of the farmee (Euroil) but rather was a shared risk operation for which Euroil was to cover only a percentage of the costs. The farmor, Apache, was to carry out the drilling operation as operator and was also responsible for a percentage of the costs.

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ABlawg: Year in Review 2020

By: Admin

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Dedication

This year in review post is dedicated to the memory of Joseph J. Arvay, Q.C., O.C., O.B.C., who passed away suddenly on December 7, 2020. As the In Memoriam page on the website of his firm Arvay Finlay notes, Joe was “one of the most brilliant and successful constitutional and civil liberties lawyers of his time.” He represented parties in “some of the defining cases of our generation including, among many others, medical assistance in dying, access to legal safe injection sites, the right of workers to associate in pursuit of workplace goals, and LGBTQ rights.”

For many bloggers on this site, Joe was both a hero and a role model.

ABlawg is pleased to provide this compilation of highlights from 2020, summarizing and synthesizing bloggers’ contributions in different areas of law during the past year. Overall, it was a busy year that included important commentary on a range of matters, including, of course, various dimensions of COVID-19. Continue reading →