Freyberg v. Fletcher Challenge Oil and Gas Inc. et al., 2006 ABCA 336

• Judge: Côté, Paperny and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Monday November 06, 2006
• Citations: 2006 ABCA 336;(2006), 401 A.R. 30 (CA)

Freyberg v. Fletcher Challenge Oil & Gas (2006), 401 A.R. 30 (CA);

      391 W.A.C. 30

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. NO.055

Lady Ivry Freyberg (appellant) v. Fletcher Challenge Oil and Gas Inc., Fletcher Challenge Energy Canada Inc., Apache Canada Ltd., Tudor Corporation Ltd., Kalta Energy Corp., Rife Resources Ltd., Wilshire Oil of Canada Ltd., Westpoint Energy Inc., (Formerly Slade Energy Inc.), Zargon Oil & Gas Ltd., Bonavista Petroleum Ltd., Hillcrest Investments Ltd., Tarsus Oils Ltd., Altacanada Energy Corp., Alberta Selecta Corporation, NV Resources Corporation Ltd., Direct Energy Marketing Limited, Midfield Supply Ltd. And PricewaterhouseCoopers Inc. as Receiver and Manager of Kalta Energy Corp. (defendants)

(0601-0161-AC; 2006 ABCA 336)

Indexed As: Freyberg v. Fletcher Challenge Oil and Gas Inc. et al.

Alberta Court of Appeal

Côté, Paperny and Watson, JJ.A.

November 6, 2006.

Summary:

The plaintiff, a lessor under a freehold natural gas lease, sought a declaration that the lease had terminated. This was the first stage of a two-stage process in the trial. The second stage, if necessary, was to deal with an accounting and remedies issues and the conditional counterclaims issued by some of the defendants.

The Alberta Court of Queen's Bench, in a decision reported 323 A.R. 45, dismissed the action. The parties sought directions respecting costs.

The Alberta Court of Queen's Bench, in a decision reported at 337 A.R. 127, determined the costs issues accordingly. The plaintiff appealed the dismissal of the action and the order respecting costs.

The Alberta Court of Appeal, O'Leary, J.A., dissenting, in a decision reported at 363 A.R. 35; 343 W.A.C. 35, allowed the appeal and granted the plaintiff a declaration that the lease had terminated. The defendants sought leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada, in a decision reported at 348 N.R. 198, denied leave to appeal. The parties focussed their attention to the second stage of the trial. The plaintiff applied before Wittmann, A.C.J., for an order confirming that the original trial judge (Romaine, J.), was not seized of the second stage of the trial, and for the assignment of a case management judge and a trial judge for the purpose of determining the remaining issues.

The Alberta Court of Queen's Bench (Wittman, A.C.J.), directed that the application be heard by Romaine, J., as the application was in essence a challenge to his impartiality.

The Alberta Court of Queen's Bench, per Romaine, J., in a decision reported at 400 A.R. 11, held that he should hear the second stage of the trial and that another judge should assume the case management function. The plaintiff appealed.

The Alberta Court of Appeal allowed the appeal and directed that a different justice hear the trial proceedings still to come.

Courts - Topic 568.1

Judges - Powers - To remained seized of a matter - The plaintiff, a lessor under a freehold natural gas lease, sought a declaration that the lease had terminated - This was the first stage of a two-stage process in the trial - The second stage, if necessary, was to deal with an accounting and remedies issues and the conditional counterclaims issued by some of the defendants - The trial judge (Romaine, J.), dismissed the action - The Alberta Court of Appeal allowed the defendants' appeal and granted the plaintiff a declaration that the lease had terminated - The plaintiff sought an order, inter alia, confirming that the trial judge was not seized of the second stage of the trial  Romaine, J., held, inter alia, that he should continue to hear the remainder of the trial as he had heard sufficient substantive evidence in the case to be seized of the matter and the parties had previously agreed that he would do so in a consent order - Alternatively, he should exercise his discretion to hear the next stage of the trial - The Alberta Court of Appeal allowed the plaintiff's appeal and directed that a different justice hear the trial proceedings still to come - The parties' pre-trial agreement did not really contemplate what happened - The practice in Alberta was to have a new justice hear a new trial necessitated by a successful appeal from the previous trial - There was a tradition of being heard by a judge who did not already know the evidence to be heard - To expect the same justice to hear a retrial was institutionally too difficult - The situation here was more similar to that, than dissimilar.

Counsel:

S. Carscallen, Q.C., and B.M. Robinson, for the appellant;

S.N. Stapon and C.D. Simard, for the respondents, Fletcher Challenge Oil and Gas Inc., Fletcher Challenge Energy Canada Inc. and Apache Canada Ltd.;

G.S. Watson, for the respondents, Tudor Corporation Ltd., Rife Resources Ltd., Westpoint Energy Inc. (formerly Slade Energy Inc.), Bonavista Petroleum Ltd., Hillcrest Investments Ltd. and Tarsus Oils Ltd.;

D.S. Nishimura, for the respondents, Kalta Energy Corp., Wilshire Oil of Canada Ltd., Zargon Oil & Gas Ltd., Direct Energy Marketing Limited and PricewaterhouseCoopers Inc. as receiver and manager of Kalta Energy Corp.

This appeal was heard on November 6, 2006, before Côté, Paperny and Watson, JJ.A., of the Alberta Court of Appeal. Côté, J.A., delivered the following oral memorandum of judgment for the court from the bench on that date and filed it on November 10, 2006.