Freyberg v. Fletcher Challenge Oil and Gas Inc. et al., (2006) 400 A.R. 11 (QB)

• Judge: Romaine, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Tuesday August 22, 2006
• Citations: (2006), 400 A.R. 11 (QB);2006 ABQB 614

Freyberg v. Fletcher Challenge Oil & Gas (2006), 400 A.R. 11 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AU.067

Lady Ivry Freyberg (plaintiff) 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)

(0101 19749; 2006 ABQB 614)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Romaine, J.

August 22, 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.), in a decision not reported in this series of reports, 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., held that he should hear the second stage of the trial and that another judge should assume the case management function.

Courts - Topic 568.1

Judges - Powers - To remain 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 - The Alberta Court of Queen's Bench (Romaine, J.), held that he should continue to hear the remainder of the trial - 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 (by reason of efficiency and appropriate use of court resources) - Further, he should not recuse himself from continuing - The results of the appeal respecting the first stage did not render it inappropriate or prejudicial to the plaintiff for him to continue - A reasonably informed observer would not conclude that he would be unable to make an unbiased decision on the issues in the second stage of the trial - See paragraphs 20 to 77.

Courts - Topic 568.1

Judges - Powers - To remain 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 argued that the trial judge should not remain the case management judge for the second stage of the trial - The Alberta Court of Queen's Bench (Romaine, J.), agreed - The parties had consented to him being both trial judge and case management judge for the first phase of the trial - However, there could be issues of substance that it would be inappropriate for him to hear as case management judge at a time when he had heard substantial trial evidence - Even if the issues related only to process, now that he had heard part of the evidence in the action, it was inappropriate for him to revert to a case management role - Further, there was a legitimate concern that a party or counsel might inadvertently refer to evidence before him that might be inadmissible in or have implications for the second phase of the trial - See paragraphs 78 to 82.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - [See first Courts - Topic 568.1].

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - [See first Courts - Topic 568.1].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See first Courts - Topic 568.1].

Practice - Topic 37

Actions - Conduct of - General - Case management - [See second Courts - Topic 568.1].

Cases Noticed:

R.W. v. Superintendent of Family and Child Services (B.C.), [1991] B.C.T.C. Uned. 300 (S.C.), refd to. [para. 20].

Eagle Resources Ltd. v. MacDonald, [2002] A.R. Uned. 453; 2002 ABQB 896, refd to. [para. 22].

Jen-Col Construction Ltd. v. Parkland No. 31 (County) et al. (2000), 269 A.R. 352 (Q.B.), refd to. [para. 24].

Muttart Industries Ltd. v. Edmonton (City) (1983), 119 A.R. 164 (C.A.), refd to. [para. 25].

Montreal Trust Co. v. T.D.L. Petroleums Inc. et al. (2004), 254 Sask.R. 38; 336 W.A.C. 38; 2004 SKCA 116, refd to. [para. 27].

Montreal Trust Co. v. Williston Wildcatters Corp. - see Montreal Trust Co. v. T.D.L. Petroleums Inc. et al.

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 41].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 42].

R. v. Elvick, [1983] O.J. No. 515 (H.C.), refd to. [para. 43].

Benedict v. Ontario (2000), 136 O.A.C. 259 (C.A.), refd to. [para. 46].

R. v. Nolin (1982), 17 Man.R.(2d) 379; 1 C.C.C.(3d) 36 (C.A.), refd to. [para. 46].

J.R.L., Re (1986), 161 C.L.R. 342 (Aust. H.C.), refd to. [para. 48].

Dykun v. Odishaw et al. (2001), 286 A.R. 392; 253 W.A.C. 392; 2001 ABCA 204, refd to. [para. 61].

R. v. Teskey (L.M.) (1995), 167 A.R. 122 (Q.B.), refd to. [para. 75].

R. v. Kochan (J.V.) et al. (2001), 288 A.R. 333 (Q.B.), refd to. [para. 75].

R. v. Truong (P.C.) (2000), 258 A.R. 276 (Q.B.), refd to. [para. 75].

R. v. Klostergaard (C.) et al. (2005), 381 A.R. 363 (Q.B.), refd to. [para. 75].

Broda v. Broda (2000), 285 A.R. 201 (Q.B.), refd to. [para. 75].

Serdahely Estate, Re (2005), 392 A.R. 220 (Q.B.), refd to. [para. 75].

Ibrahim v. Giuffre et al. (2000), 258 A.R. 319 (Q.B.), refd to. [para. 75].

Ritter et al. v. Hoag et al. (2003), 335 A.R. 185 (Q.B.), refd to. [para. 75].

Counsel:

Stanley Carscallen, Q.C., and Brent M. Robinson, for the plaintiff, Lady Ivry Freyberg;

Grant Stapon and Christopher D. Simard, for the defendant, Apache Canada Ltd.;

G. Scott Watson and Scott A. Newell, for the defendants, Tudor Corporation Ltd., Encana Corporation (formerly Westpoint Energy Inc.) (formerly Slade Energy Inc.), Bonavista Petroleum Ltd., Hillcrest Investments Ltd. and Tarsus Oils Ltd.;

Douglas S. Nishimura, for the defendants, Direct Energy Marketing Limited, Zargon Oil & Gas Ltd., Wilshire Oil of Canada Ltd. and PricewaterhouseCoopers Inc. as Receiver and Manager of Kalta Energy Corp.

This application was heard by Romaine, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for decision on August 22, 2006.