Blue Range Resource Corp., Re, (2001) 281 A.R. 351 (CA)

• Judge: Sulatycky, A.C.J.Q.B., and Russell and Wittmann, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 03, 2001
• Citations: (2001), 281 A.R. 351 (CA);2001 ABCA 177

Blue Range Resource Corp., Re (2001), 281 A.R. 351 (CA);

    248 W.A.C. 351

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JL.049

In The Matter Of the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended

And In The Matter Of Blue Range Resource Corporation

Enron Canada Corp. and the Creditors' Committee (applicants/appellants) and National-Oilwell Canada Ltd., Campbell's Industrial Supply Ltd., Barrington Petroleum Ltd., Petro-Canada Oil and Gas, Halliburton Group Canada Inc., Transalta Utilities Corporation, Rigel Oil & Gas Ltd. and Founders Energy Ltd. (respondents/respondents)

(Nos. 99-18564; 99-18565; 99-18566; 99-18567; 99-18568; 99-18569; 99-18571; 00-18802; 2001 ABCA 177)

Indexed As: Blue Range Resource Corp., Re

Alberta Court of Appeal

Sulatycky, A.C.J.Q.B., and Russell and Wittmann, JJ.A.

July 3, 2001.

Summary:

Two orders under the Companies' Creditors Arrangement Act set a claims bar date on or before which creditors had to file their claims. Some creditors who did not file in time applied for permission to file their claims late. Some others who filed in time but sought after the claims bar date to increase the amount claimed applied for permission to do so. Other creditors applied for permission to upgrade their claims late from unsecured to secured. Finally, one creditor who filed its claim in time and had it allowed in part, filed a notice of dispute of the decision of the monitor after the expiry of the appeal period. This creditor applied for permission to appeal this decision late.

The Alberta Court of Queen's Bench, in a decision reported 251 A.R. 1, allowed the applications. Some non-applicant creditors applied for leave to appeal.

The Alberta Court of Appeal, per Wittmann, J.A., in chambers, in a decision reported 250 A.R. 239; 213 W.A.C. 239, allowed the application.

The Alberta Court of Appeal, in a decision reported 271 A.R. 138; 234 W.A.C. 138, dismissed the appeal on the merits. The unsuccessful appellants, which included Enron, asked that no costs be awarded, or in the alternative, if costs were awarded, there should be no award of double costs and the costs should be paid by the general constituency of creditors, not the appellant Enron alone.

The Alberta Court of Appeal ruled that the respondents were each entitled to their separate costs of the appeal, payable by Enron alone. No double costs were awarded.

Creditors and Debtors - Topic 8598

Debtors' relief legislation - Companies' creditors arrangement legislation - Costs - Two orders under the Companies' Creditors Arrangement Act set a claims bar date on or before which creditors had to file their claims - Late creditors successfully applied for permission to either late file or upgrade their claims, or appeal unfavourable decisions concerning their claims - The supervising chambers judge allowed the applications - The Alberta Court of Appeal upheld the decision - The court was asked whether Enron, a creditor, unsuccessful appellant and real promoter of the litigation, should pay the costs or whether payment should come from the estate of the debtor company - The Alberta Court of Appeal, in its discretion, ordered that Enron alone pay the costs - Otherwise, all creditors, including the successful respondents, would have to pay a share of the costs - There was no reason to make the order requested by Enron - See paragraphs 15 and 16.

Creditors and Debtors - Topic 8598

Debtors' relief legislation - Companies' creditors arrangement legislation - Costs - [See Practice - Topic 7029 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - [See first Creditors and Debtors - Topic 8598 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Novel or important point - Two orders under the Companies' Creditors Arrangement Act set a claims bar date on or before which creditors had to file their claims - Late creditors successfully applied for permission to either late file or upgrade their claims, or appeal unfavourable decisions concerning their claims - The supervising chambers judge allowed the applications - The Alberta Court of Appeal upheld the decision - The unsuccessful appellants asked that no costs be awarded, arguing that the issue was novel, of public importance and of importance to the insolvency practice - The Alberta Court of Appeal denied the request - See paragraphs 2 to 10.

Practice - Topic 7039

Costs - Party and party costs - Entitlement to party and party costs - Commencement of multiplicity of proceedings - The unsuccessful appellants argued that a separate set of costs for each of the eight respondents should not be permitted as the issues were common to each respondent and the resulting test respecting late filing of claims under the Companies' Creditors Arrangement Act was one of general applicability - The Alberta Court of Appeal rejected the argument where the appellants filed eight separate notices of appeal, the facts were not the same for each respondent, there were two distinct categories of respondents and there was separate counsel, separate facta and different submissions - See paragraphs 17 to 19.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes) - [See Practice - Topic 7243 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The unsuccessful appellants had refused to accept offers to settle presented by the respondents prior to the hearing of the appeal - The successful respondents sought double costs - The Alberta Court of Appeal denied the request - The offers to settle were not genuine offers of compromise where the only options extended to the appellants were to proceed with the appeal or not - See paragraphs 11 to 14.

Practice - Topic 8331

Costs - Appeals - Costs of appeal - Novel or important questions - [See Practice - Topic 7029 ].

Cases Noticed:

Lindsay v. Transtec Canada Ltd. (1994), 28 C.B.R.(3d) 110 (B.C.S.C.), refd to. [para. 5].

Algoma Steel Corp. v. Royal Bank of Canada et al. (1992), 55 O.A.C. 303; 11 C.B.R.(3d) 11 (C.A.), leave to appeal denied (1992), 10 O.R.(3d) xv (S.C.C.), refd to. [para. 5].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1987), 76 A.R. 271; 50 Alta. L.R.(2d) 1 (Q.B.), refd to. [para. 7].

Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al. (1997), 211 A.R. 48; 153 D.L.R.(4th) 118 (Q.B.), refd to. [para. 7].

Labbee et al. v. Peters et al. (2000), 261 A.R. 141; 225 W.A.C. 141 (C.A.), consd. [para. 12].

Statutes Noticed:

Rules of Court (Alta.), rule 601 [para. 16]; rule 601(3) [para. 2].

Authors and Works Noticed:

Orkin, Mark, The Law of Costs (2nd Ed. 1996), paras. 2-49 to 2-51 [para. 4].

Counsel:

A. Robert Anderson and Scott J. Burrell, for the appellants;

Jeffrey N. Thom and Cynthia L. Martens, for the respondents, National-Oilwell Canada Ltd. and Campbell's Industrial Supply Ltd.;

David W. Mann, for the respondents, Barrington Petroleum Ltd. and Petro-Canada Oil and Gas;

Peter Braithwaite, for the respondent, Halliburton Group Canada Inc.;

Sean F. Collins, for the respondent, TransAlta Utilities Corp.;

Joel S. Short, for the respondent Rigel Oil & Gas Ltd.;

Kenneth Staroszik, for the respondent Founders Energy Ltd.

Written submissions on costs were filed with the Alberta Court of Appeal in March and April 2001.

The Alberta Court of Appeal, per Sulatycky, A.C.J.Q.B., Russell and Wittmann, JJ.A., delivered the following memorandum on costs on July 3, 2001.