Devon Canada Corp. v. Surface Rights Board (Alta.), (2003) 337 A.R. 135 (QB)
| Judge | Sirrs, J. |
| Neutral Citation | 2003 ABQB 7 |
| Citation | (2003), 337 A.R. 135 (QB),2003 ABQB 7,10 Alta LR (4th) 266,337 AR 135,(2003), 337 AR 135 (QB),337 A.R. 135 |
| Date | 06 January 2003 |
| Court | Court of Queen's Bench of Alberta (Canada) |
Devon Can. Corp. v. Surface Rights Bd. (2003), 337 A.R. 135 (QB)
MLB headnote and full text
Temp. Cite: [2003] A.R. TBEd. JA.085
Devon Canada Corporation (applicant) v. Surface Rights Board (respondent)
(Action No. 0210-00852; 2003 ABQB 7)
Indexed As: Devon Canada Corp. v. Surface Rights Board (Alta.)
Alberta Court of Queen's Bench
Judicial District of Red Deer
Sirrs, J.
January 6, 2003.
Summary:
The applicant sought judicial review of the decision of the Surface Rights Board (Alta.) whereby the Board recommended that surface owners be paid $28,800 by the provincial treasurer under s. 36(6) of the Surface Rights Act.
The Alberta Court of Queen's Bench allowed the application, quashed the Board's decision and remitted the matter to the Board for a new hearing or a continuation of the prior hearing to consider evidence relevant to the Board exercising its discretion under s. 36(6) of the Surface Rights Act.
Mines and Minerals - Topic 6111
Operation of mines, quarries and wells - Compensation to owners of surface rights -Payment by Crown where operator defaults - Section 36(6) of the Surface Rights Act provided that where an operator failed to pay money due under a compensation order or lease, the owner could apply to the Surface Rights Board to direct the Provincial Treasurer to pay the amount due - The Alberta Court of Queen's Bench stated that the permissive language of s. 36(6) left the Board with some discretion whether to order that back rent allegedly owing be paid by the Provincial Treasurer - If the operator satisfied the Board that the surface owner's claim was unjustified, was patently absurd, or provided an unjust enrichment, the Board should be able to use its discretion under s. 36(6) to refuse to direct that Alberta taxpayers pay the rental arrears - See paragraph 29.
Mines and Minerals - Topic 6144
Operation of mines, quarries and wells - Compensation to owners of surface rights -Awards - Judicial review - Scope of - The applicant sought judicial review of the decision of the Surface Rights Board whereby the Board recommended that surface owners be paid $28,800 by the provincial treasurer under s. 36(6) of the Surface Rights Act for unpaid lease payments - The Act did not contain a privative clause - The Alberta Court of Queen's Bench held that the Board was owed some considerable deference in using its discretion under s. 36(6) of the Act - Coupling the Board's experience with the purpose of the legislation, the nature of the issue, and statutory discretion, the appropriate standard of review was patent unreasonableness - See paragraphs 29 to 31.
Cases Noticed:
Todd Ranch Ltd. v. Surface Rights Board (Alta.) (1995), 170 A.R. 170 (Q.B.), dist. [para. 10].
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 19].
OH Ranch Ltd. v. Surface Rights Board (Alta.) (1994), 148 A.R. 315 (Q.B.), refd to. [para. 12].
Sandboe v. Coseka Resources Ltd. (1990), 108 A.R. 226; 74 Alta. L.R.(2d) 277 (Q.B.), refd to. [para. 28].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 29].
Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 30].
Statutes Noticed:
Surface Rights Act, R.S.A. 2000, c. S-24, sect. 36(6) [para. 7].
Counsel:
John Gruber (Thackray Burgess), for the applicant;
Marilyn McAvoy (Alberta Surface Rights Board), for the respondent;
Brian K. O'Ferrall, Q.C., for the Douglas family.
This application was heard before Sirrs, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who released the following reasons for judgment on January 6, 2003.
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