Capital Power Corp. v. Lehigh Hanson Materials Ltd.,

• Judge: Wittmann
• Neutral Citation: 2013 ABQB 413
• Date: 21 February 2013
• Court: Court of Queen's Bench of Alberta (Canada)

Capital Power Corp. v. Lehigh Hanson Materials Ltd. (2013), 565 A.R. 302 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.113

Capital Power Corporation (applicant) v. Lehigh Hanson Materials Limited (respondent)

(1201 10911; 2013 ABQB 413)

Indexed As: Capital Power Corp. v. Lehigh Hanson Materials Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, C.J.Q.B.

July 18, 2013.

Summary:

In 2002, the predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. entered into an agreement (the Agreement) by which Capital Power would sell ash generated as a by-product of a coal-fired electrical generating station to Lehigh. Under s. 15.1 of the Agreement, the parties were required to bring any disputes arising between them to arbitration. On July 3, 2010, Capital Power cut off the sale of ash to Lehigh for a period to September 1, 2010. Capital Power cut off sales of unclassified ash to Lehigh again in April 2011. Lehigh commenced arbitration proceedings. Its Notice of Reference listed 10 matters in dispute, dealing with the supply and purchase obligations of the parties under the Agreement, and whether the restrictive covenants in the Agreement were illegal and unenforceable under the Competition Act. Capital Power proposed an additional issue of whether the restrictive covenants in the Agreement were in restraint of trade at common law and therefore unenforceable. The Arbitration Committee divided its Award into three sections: supply and purchase obligations; the enforceability of the restrictive covenant; and damages. Capital Power applied under ss. 44(2) and 45 of the Arbitration Act to appeal or set aside the Award.

The Alberta Court of Queen's Bench allowed leave to appeal the Award only in regard to the issues of whether the Arbitration Committee erred in its interpretation of s. 3.2 and s. 3.4 of the Agreement, concerning the quantity and quality of ash to be supplied by Capital Power to Lehigh and in regard to the issue of whether the restrictive covenant in the Agreement was invalid as being in restraint of trade. The appeal on those grounds was dismissed. The application was therefore dismissed.

Arbitration - Topic 7959

Judicial review (incl. appeals) - Jurisdiction of arbitrator - General - Excess of jurisdiction - The predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. entered into an agreement (the Agreement) by which Capital Power would sell ash generated as a by-product of a coal-fired electrical generating station to Lehigh - Under s. 15.1 of the Agreement, the parties were required to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power contended that, having interpreted s. 5.5 of the Agreement in a manner that essentially put the amount of ash that it could purchase within Lehigh's discretion, the Arbitration Committee exceeded its jurisdiction under s. 15.1 of the Agreement, which precluded arbitration in respect of "provisions within the absolute discretion of one of the parties" - It asked that the Arbitration Committee's Award be set aside under s. 45(1)(c) of the Arbitration Act - The Alberta Court of Queen's Bench rejected the argument - The court noted that it was Capital Power that argued before the Committee that it had discretion to allocate ash under s. 5.6 of the Agreement, and the Committee rejected that argument, holding instead that "its effect is quite the opposite" - Capital Power did not consider the discretionary nature of the rights under s. 5.6 of the Agreement to be outside of the jurisdiction of the Arbitration Committee until the Committee determined that the discretion operated to the benefit of Lehigh, not Capital Power - Further, the discretion enjoyed by Lehigh under the Committee's interpretation of s. 5.6 of the Agreement was not appropriately characterized as "absolute" - The general scheme of the Agreement was that Capital Power would advise Lehigh of the amount of ash that might be available for purchase, that Lehigh would, in response, advise Capital Power of the amount of ash it wished to purchase, and that Capital Power would thereafter be obligated only to use best efforts to produce the required quantities - The court did not construe this as conveying upon Lehigh an absolute discretion - In contrast, a number of provisions in the Agreement expressly provided for an absolute discretion - The proper interpretation of s. 15.1, in the context of the entire agreement, its object and intention, was that it was intended to preclude arbitration in respect of those matters alone - See paragraphs 58 to 62.

Arbitration - Topic 8230

Judicial review (incl. appeals) - Bars - Submission of questions of law to arbitrator - Under s. 44(3) of the Arbitration Act leave to appeal from a decision of an arbitrator would not be allowed in respect of a question of law that the parties had expressly referred to the arbitral tribunal for decision - Conflicting decisions had taken either the "wide" or "narrow" view of s. 44(3) - Under the narrow view of s. 44(3), leave would be refused only where a very specific question of law had been put to the arbitrator for decision - Under the wide view, if the question put to the arbitrator was framed in such a way that it necessarily involved answering a question of law, then leave would be denied - The Alberta Court of Queen's Bench stated that the wide interpretation of s. 44(3) had the potential to render s. 44(2) meaningless, and that a wide interpretation of s. 44(3) failed to give proper effect to the word "expressly" in that section - It was only where the parties had identified and referred to the arbitrator a discrete legal issue that s. 44(3) would operate to bar an appeal in respect of that issue - See paragraphs 38 to 44.

Arbitration - Topic 8230

Judicial review (incl. appeals) - Bars - Submission of questions of law to arbitrator - An Agreement entered into by the predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. required the parties to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Capital Power contended that the Arbitration Committee failed to apply the correct legal test when determining whether a restrictive covenant in the Agreement was invalid as a restraint of trade - The question that had been referred to the Arbitration Committee in the terms of reference was: "Is the restrictive covenant in section 3.2 of the Agreement a covenant in furtherance of a restraint of trade, and therefore unenforceable as being contrary to public policy" - Lehigh contended that Capital Power was seeking to appeal the question of law expressly put to the Committee, contrary to s. 44(3) of the Act - The Alberta Court of Queen's Bench stated that "there is an extricable question of law of sufficient importance to warrant the granting of leave, and that question is whether, in coming to its determination that the restrictive covenant was not invalid as a restraint of trade, the Committee applied the proper legal test" - See paragraph 71.

Arbitration - Topic 8230

Judicial review (incl. appeals) - Bars - Submission of questions of law to arbitrator - An Agreement entered into by the predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. required the parties to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Capital Power contended that the Arbitration Committee made errors of statutory interpretation when determining whether a restrictive covenant in the Agreement infringed the Competition Act - The Alberta Court of Queen's Bench stated that "The question that was put to the Committee was: Have recent amendments to the Competition Act made prima facie illegal and therefore unenforceable, the Restrictive Covenant contained in section 3.2 of the Agreement? Even on the most narrow reading of s. 44(3) of the Act, the question now raised by Capital Power is the very question of law that the parties expressly referred to the Committee. Leave to appeal in respect of this question is therefore denied" - See paragraph 76.

Arbitration - Topic 8301.1

Judicial review (incl. appeals) - Grounds - General - Questions of law - The applicant applied under s. 44(2) of the Arbitration Act to appeal the Award of an Arbitration Committee - Under s. 44(2), before granting leave to appeal, the court had to be satisfied, inter alia, that the grounds of appeal constituted questions of law - The Alberta Court of Queen's Bench stated that "the proper approach to each of the errors alleged to have been made by the Committee, is to determine whether there is an extricable question of law that may be subject to appeal" - See paragraphs 24 to 27.

Arbitration - Topic 8596

Judicial review - Practice - Setting aside ruling or award - General principles - The applicant (Capital Power Corp.) applied under ss. 44(2) and 45 of the Arbitration Act to appeal or set aside the Award of an Arbitration Committee - Unlike an appeal under s. 44(2) of the Act, no leave was required for an application to set aside an award under s. 45 of the Act - The Alberta Court of Queen's Bench stated that "Capital Power contends that despite the apparent difference between the appeal provisions of the Act, which focus on errors of law, and the set aside provision in s. 45, where the focus is on procedure, there is an overlap because 'many procedural concerns are also errors of law'. Similarly, in Capital Power's submission, an arbitrator's decision that is not 'in accordance with the law' would fall afoul of s. 31 of the Act, which requires arbitrators to make decisions in accordance with the law, and would therefore trigger s. 45(1)(g), which allows the Court to set aside an award that does not comply with the provisions of the Act. ... The effect of Capital Power's interpretation of s. 31 and s. 45(1)(g) of the Act would be both to ignore the significant differences between the objectives of s. 44 and s. 45, and to render s. 44 meaningless. Every error of law would amount to grounds to set aside the Award, notwithstanding s. 44, which is clearly intended to limit the court's intervention, even where the arbitrator may have erred in law, to circumstances in which the test for leave have been met. For this reason, I reject Capital Power's contention that 'where an arbitrator fails to decide a matter in accordance with the applicable law it fails to comply with the Act, and the award rendered from this non-compliant process should be set aside pursuant to s. 45(1)(g).'"- See paragraphs 52 to 54.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - Section 44 of the Arbitration Act provided for an appeal from the decision of an arbitrator - Under s. 44(2), before granting leave to appeal, the court had to be satisfied that the grounds of appeal constituted questions of law; that the importance to the parties of the matters at stake in the arbitration justified an appeal; and the determination of the question of law at issue would significantly affect the rights of the parties - The Alberta Court of Queen's Bench stated that "I am not satisfied that there is a sound basis in the statute for the weighing of the public interest as a critical factor in the analysis under s. 44(2). What the Act requires, in both its general scheme and under s. 44(2) specifically, is a very high standard when considering whether the importance to the parties of the matters at stake in the arbitration justifies an appeal" - See paragraphs 28 to 35.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - The predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. entered into an agreement (the Agreement) by which Capital Power would sell ash generated as a by-product of a coal-fired electrical generating station to Lehigh - Under s. 15.1 of the Agreement, the parties were required to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings in April 2011 - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Under s. 44(2), before granting leave to appeal, the court had to be satisfied that the grounds of appeal constituted questions of law; that the importance to the parties of the matters at stake in the arbitration justified an appeal; and the determination of the question of law at issue would significantly affect the rights of the parties - The Alberta Court of Queen's Bench stated that "In April 2011, Lehigh exercised its option to renew the Agreement for a second 10-year term. The Committee's interpretation of the Agreement, as manifested in the Award, affects not only the potential for damages for past conduct but would govern the parties' conduct for the next 10 years. The pecuniary impact on the parties could be in the many millions of dollars. In my view it is not necessary to apply this consideration to each of the errors alleged by Capital Power individually and I conclude that the importance of the matters at issue to the parties warrants granting leave" - See paragraph 37.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - Section 44 of the Arbitration Act provided for an appeal from the decision of an arbitrator - The respondent argued that, aside from the grounds for refusing leave expressly set out in s. 44, the court enjoyed a residual discretion to deny leave - The Alberta Court of Queen's Bench stated that it had difficulty reconciling that interpretation of the Act with the use of the word "shall" in s. 44(2) - The court was not convinced that the court retained a discretion to deny leave for reasons not encompassed by s. 44 of the Act - See paragraphs 45 to 51.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - An Agreement entered into by the predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. required the parties to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Capital Power alleged that the Committee failed to follow binding principles of contractual interpretation - Lehigh contended that Capital Power's real complaint was with the Committee's application of contractual principles to the particular words in the Agreement and its factual matrix, which it argued was a question of mixed law and fact - Lehigh further argued that, even under a narrow approach to s. 44(3), all of the alleged errors arose out of questions expressly referred to the Committee - The Alberta Court of Queen's Bench stated that "I find it difficult to reconcile Lehigh's arguments that the errors alleged by Capital Power are (a) questions of law expressly put to the Committee and in the alternative (b) questions of mixed law or fact and therefore not subject to appeal. It seems to me that the questions raised under this ground of appeal are extricable questions of law. In view of the importance of the issues to the parties, it is appropriate to grant leave to appeal" - See paragraphs 63 to 65.

Arbitration - Topic 8705

Judicial review (incl. appeals) - Practice - Appeals - Standard of review - The applicant applied under s. 44(2) of the Arbitration Act to appeal the Award of an Arbitration Committee - The parties disagreed on the appropriate standard of review, in the event that leave was granted in respect of any of the Committee's alleged errors - The Alberta Court of Queen's Bench stated that "Because the parties did not agree, per s. 44(1), to allow appeals on questions of fact or mixed law and fact, they are limited to appeals on questions of law under s. 44(2). The standard of review for appeals on questions of law is correctness" - See paragraphs 55 to 57.

Contracts - Topic 6728

Illegal contracts - Contrary to public policy - Restraint of trade - Defined - The predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. entered into an agreement (the Agreement) by which Capital Power would sell ash generated as a by-product of a coal-fired electrical generating station to Lehigh - Under s. 15.1 of the Agreement, the parties were required to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Capital Power contended that the Committee failed to apply the correct legal test when determining whether a restrictive covenant in the Agreement was invalid as a restraint of trade - The Alberta Court of Queen's Bench stated, inter alia, "The Committee considered both the duration and geographical scope of the restrictive covenant ... It considered the scope of the prohibited activity in the context of its discussion of the vertical nature of the relationship between the parties, and in noting that Capital Power is not completely prevented from selling ash to other parties, as the ENX agreement demonstrates. The Committee was mindful of the fact that the Agreement was made between knowledgeable, well-advised and sophisticated parties who were competent to assess their respective interests, and gave this consideration the appropriate weight. In my view, the Committee considered all of the appropriate factors in concluding that the restrictive covenant constituted a valid restraint of trade, and its decision in this regard was correct" - See paragraphs 71 to 75.

Contracts - Topic 7406

Interpretation - General principles - Interpretation by context - [See Contracts - Topic 7407 ].

Contracts - Topic 7407

Interpretation - General principles - Whole contract to be considered - The predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. entered into an agreement (the Agreement) by which Capital Power would sell ash generated as a by-product of a coal-fired electrical generating station to Lehigh - Under s. 15.1 of the Agreement, the parties were required to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Capital Power alleged that the Committee failed to follow binding principles of contractual interpretation - The Alberta Court of Queen's Bench stated, inter alia, "I do not agree that the Committee erred in equating 'Annual Purchase Quantity' with 'Contract Year Purchase Quantity', or that the Committee failed to interpret the provisions of the Agreement harmoniously. ... In determining the meaning of Annual Purchase Quantity and s. 3.2 on the whole, the Committee had regard to the appropriate principle of contractual interpretation, which is to examine the provision in question in the context of the entire agreement. ... Capital Power's interpretation, which is that Annual Purchase Quantity should be given the same meaning as Minimum Guaranteed Purchase Quantity, suffers from the same defect of giving two different terms in the Agreement the same meaning. ... but it does not seem to me to be consistent with the other provisions in the Agreement, with commercial sense, or with the subsequent conduct of the parties. ... Moreover, the Committee's interpretation is consistent with the terms of Capital Power's subsequent agreement with ENX" - See paragraphs 66 to 69.

Contracts - Topic 7409

Interpretation - General principles - Subsequent conduct of parties - The predecessors of Capital Power Corp. and Lehigh Hanson Materials Ltd. entered into an agreement (the Agreement) by which Capital Power would sell ash generated as a by-product of a coal-fired electrical generating station to Lehigh - Under s. 15.1 of the Agreement, the parties were required to bring any disputes arising between them to arbitration - Lehigh commenced arbitration proceedings - Capital Power applied under s. 44(2) of the Arbitration Act to appeal the Award of the Arbitration Committee - Capital Power alleged that the Committee failed to follow binding principles of contractual interpretation - The Alberta Court of Queen's Bench stated that it was not convinced that the Arbitration Committee failed to follow binding principles of contractual interpretation when it concluded that the parties had through their conduct established an 82% fines standard for classified fly ash under s. 3.4 of the Agreement - Capital Power contended that in coming to that determination, the Committee failed to give effect to the non-waiver provision contained at s. 17.1 of the Agreement - However, s. 3.4 expressly contemplated that there could be further standards established by the parties for classified fly ash during the currency of the agreement and that the only question the Arbitration Committee was required to consider was whether those standards had to be expressly imported from external bodies or whether they could be any substitute standards - There was evidence upon which it was proper for the Committee to conclude that the parties had through their conduct arrived at an 82% fines standard for classified fly ash - The Committee did not err in that regard - See paragraph 70.

Contracts - Topic 7468

Interpretation - Interpretation of words - Whole of contract to be considered - [See Contracts - Topic 7407 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See third Arbitration - Topic 8701 ].

Cases Noticed:

Tank Lining Corp. v. Dunlop Industrial Ltd. (1982), 40 O.R.(2d) 219 (C.A.), refd to. [para. 15].

Frank v. Vogel & Co. LLP (2012), 545 A.R. 320; 2012 ABQB 432, refd to. [para. 25].

Ainsworth Lumber Co. v. Grant Forest Products Inc., [2007] A.R. Uned. 502; 2007 ABQB 556, refd to. [para. 25].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 26].

Warren v. Alberta Lawyers' Public Protection Association (1997), 208 A.R. 149; 56 Alta L.R.(3d) 52 (Q.B.), refd to. [para. 29].

Co-operators General Insurance Co. v. Great Pacific Industries Inc. (1998), 213 A.R. 229; 1998 ABQB 137, affd. (1998), 219 A.R. 90; 179 W.A.C. 90; 1998 ABCA 272, refd to. [para. 30].

Schultz v. Schultz (2000), 282 A.R. 59; 2000 ABQB 866, refd to. [para. 30].

Sherwin-Williams Co. v. Walls Alive (Edmonton) Ltd. (2002), 331 A.R. 317; 2002 ABQB 999, refd to. [para. 30].

Lion's Gate Homes Ltd. v. Shand, [2008] A.R. Uned. 150; 2008 ABQB 15, refd to. [para. 30].

Alenco Inc. v. Niska Gas Storage US, LLC, [2009] A.R. Uned. 272; 2009 ABQB 192, refd to. [para. 30].

Heredity Homes (St. Albert) Ltd. v. Scanga (2009), 471 A.R. 361; 2009 ABQB 237, refd to. [para. 30].

Venneman et al. v. Mountain View No. 17 (County), [2009] A.R. Uned. 661; 2009 ABQB 540, refd to. [para. 30].

Apache Canada Ltd. v. Harmattan Gas Processing Limited Partnership et al., [2010] A.R. Uned. 334; 2010 ABQB 288, refd to. [para. 30].

Rudiger Holdings Ltd. et al. v. Kellyvone Farms Ltd. et al. (2002), 321 A.R. 182; 2002 ABQB 601, refd to. [para. 30].

Fuhr Estate v. Husky Oil Marketing Co. (2010), 496 A.R. 232; 2010 ABQB 495, refd to. [para. 31].

Milner Power Inc. v. Coal Valley Resources Inc. et al., [2011] A.R. Uned. 190; 2011 ABQB 118, refd to. [para. 32].

Contract Policy Committee et al. v. FortisAlberta Inc. (2012), 552 A.R. 11; 2012 ABQB 653, refd to. [para. 34].

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd., [1980] 1 S.C.R. 178; 27 N.R. 502; 18 N.S.R.(2d) 592; 20 A.P.R. 592, refd to. [para. 43].

Bell Canada v. Office and Professional Employees' International Union, Local 131, [1974] S.C.R. 335, refd to. [para. 43].

Metropolitan Toronto Board of Commissioners of Police v. Metropolitan Toronto Police Association, [1975] 1 S.C.R. 630; 2 N.R. 95, refd to. [para. 43].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 46].

Rea International Inc. v. Muntwyler et al. (2004), 190 O.A.C. 227 (Div. Ct.), refd to. [para. 48].

Loewen v. Manitoba Teachers' Society (2011), 263 Man.R.(2d) 242; 2011 MBQB 60, refd to. [para. 48].

Bank of Nova Scotia v. Span West Farms Ltd. (2003), 232 Sask.R. 279; 294 W.A.C. 279; 2003 SKCA 35, refd to. [para. 48].

Northern & Bluebird Amusement Co. v. 053857 NB Inc., [2001] N.B.R.(2d) (Supp.) No. 33 (T.D.), refd to. [para. 49].

Student Association of the British Columbia Institute of Technology v. British Columbia Institute of Technology (2000), 142 B.C.A.C. 129; 233 W.A.C. 129; 2000 BCCA 496, refd to. [para. 49].

Domtar Inc. v. Belkin Inc. (1989), 39 B.C.L.R.(2d) 257 (C.A.), refd to. [para. 49].

Seneviratne v. Seneviratne (1998), 222 A.R. 65; 1998 ABQB 289, refd to. [para. 53].

Denali Construction Inc. v. Tremore Contracting Ltd., [2013] A.R. Uned. 386; 2013 ABQB 321, refd to. [para. 56].

Nordenfelt v. Maxim Nordenfeldt Guns and Ammunition Company, Limited, [1894] A.C. 535, refd to. [para. 72].

Collins (J.G.) Insurance Agencies Ltd. v. Elsley's Estate, [1978] 2 S.C.R. 916; 20 N.R. 1, refd to. [para. 72].

KRG Insurance Brokers (Western) Inc. v. Shafron et al., [2009] 1 S.C.R. 157; 383 N.R. 217; 265 B.C.A.C. 1; 446 W.A.C. 1; 2009 SCC 6, refd to. [para. 72].

Martin v. ConCreate USL Limited Partnership et al. (2013), 301 O.A.C. 363; 2013 ONCA 72, refd to. [para. 73].

Statutes Noticed:

Arbitration Act, R.S.A. 2000, c. A-43, sect. 44 [para. 19]; sect. 45 [para. 20].

Authors and Works Noticed:

Alberta Law Reform Institute, Arbitration Act: Stay and Appeal Issues, Report for Discussion No. 24 (2012), generally [para. 34]; pp. 34 [para. 43]; 84 [para. 38].

Casey, J. Brian, Arbitration Law of Canada: Practice and Procedure (2nd Ed. 2011), p. 414 [para. 52].

Counsel:

D.A. McGillivray, Q.C., L.M. Novinger Grant, A.F. Sunter and J. Luu, for the applicant;

B.C. Yorke-Slader, Q.C., A.D. Grosse and M.P. Theroux, for the respondent.

This application was heard on February 21, 2013, before Wittmann, C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 18, 2013.