Genesis Land Development Corp. et al. v. Alberta et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Manderscheid, J.
• Citation: 2009 ABQB 221,(2009), 471 A.R. 1 (QB)
• Date: 09 April 2009

Genesis Land Dev. Corp. v. Alta. (2009), 471 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.092

Genesis Land Development Corp., Spray Lake Resort Corporation and Kananaskis Pathways Corporation (respondents/plaintiffs) v. Her Majesty the Queen in Right of Alberta and the Honourable Gary Mar, Q.C. (applicants/defendants)

(0303 11865; 2009 ABQB 221)

Indexed As: Genesis Land Development Corp. et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

April 9, 2009.

Summary:

The plaintiffs were proponents of a major development in Kananaskis Country. The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects). There was a four stage approval process. The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation. The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage. The government announced a new policy restricting development in the area. Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects. The plaintiffs commenced an action against the province and Mar, alleging abuse of public office, expropriation, breach of contract and tortious interference with business relations. Mar applied to strike the statement of claim as against him. The province and Mar applied for summary judgment to dismiss the claims.

The Alberta Court of Queen's Bench dismissed Mar's application to strike the claim against him. The court granted summary judgment to dismiss the claims of abuse of public office, tortious interference with business relations, the claim of expropriation regarding the lands for the heli-cat operation and the resort and breach of contract. The court dismissed the application for summary judgment for the claim of expropriation regarding the lands for the boat operation and the claim of breach of contract regarding the lease and licence for the boat operation.

Contracts - Topic 1103

Formation of contract - General principles - Promises or assurances - [See first Crown - Topic 1001 ].

Contracts - Topic 2721

Consideration - Necessity for - General - [See first Crown - Topic 1001 ].

Crown - Topic 1001

Contracts with Crown - General principles - General (incl. what constitutes) - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, breach of contract and the duty of good faith and fair dealing - The defendants applied for summary judgment to dismiss the claim - The Alberta Court of Queen's Bench granted summary judgment to dismiss the claims of breach of contract and the duty of good faith and fair dealing, except with respect to the boat operation - The government had conceded that the plaintiffs had received assurance that the projects would proceed, subject only to environmental assessment - However, there was no evidence of any consideration having been given for that assurance - Without more, the alleged assurance was not a positive binding obligation - Estoppel could not be allowed to hinder the formation of government policy - Intent to contract could not be implied where the alleged agreement would have bound the defendants to approve the projects - Nor could the defendants contract out of their statutory duty to determine whether the projects were in the public interest - As there was no contract, there could not be any breach of a contractual term requiring good faith and fair dealing - Further, the evidence showed that Mar had exercised his discretion in good faith - There was no evidence that he had acted other than bona fide and in accordance with his statutory authority - There was no triable issue with respect to those claims - See paragraphs 147 to 173.

Crown - Topic 1001

Contracts with Crown - General principles - General (incl. what constitutes) - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, breach of contract and the duty of good faith and fair dealing - The defendants applied for summary judgment to dismiss the claim - The Alberta Court of Queen's Bench dismissed the application with respect to the boat operation only - The only contractual relationship that came into existence between the parties was regarding the lease and licence for the boat operation - The plaintiffs had provided deposit money for the lease and licence, which were granted by the government - Without evidence as to the terms of the lease and the licence, the court was unable to make a determination as to whether or not there was a breach of those contracts or of a duty of good faith and fair dealing - Accordingly, there was a genuine issue for trial - See paragraphs 174 and 175.

Crown - Topic 1247

Contracts with Crown - Breach by the Crown - Defences - Public interest - [See first Crown - Topic 1001 ].

Crown - Topic 1551

Torts by and against Crown - Interference with economic relations - General - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, tortious interference with business relations - The defendants applied for summary judgment to dismiss the claim - The Alberta Court of Queen's Bench allowed the application - There were three elements to the tort: (i) intention to injure; (ii) interference with the other party's business by illegal or unlawful means and (iii) resultant economic loss - The evidence showed that Mar had engaged in lawful conduct within his statutory authority - Mere foreseeability that injury would result to the plaintiffs was not sufficient to establish an intention to injure - There was no genuine issue for trial - See paragraphs 110 to 117.

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Statutory authority - [See Crown - Topic 1551 ].

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Statutory authority - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, abuse of public office - The defendants applied for summary judgment to dismiss the claim - The Alberta Court of Queen's Bench allowed the application - The defendants had to show that there was no genuine issue requiring trial with respect to the two elements of the tort: (i) deliberate unlawful conduct in the exercise of public functions and (ii) awareness that the conduct was unlawful and likely to injure the plaintiffs - Evidence of an intention to injure would be evidence of both elements - Mar had statutory authority to order that no approval or registration be issued regarding the projects - The only precondition was that he had to have formed the opinion that the projects were not in the public interest - Therefore, the only question that arose was whether he had formed that opinion and had intended to injure the plaintiffs - The evidence supported the defendants' position that Mar engaged in lawful conduct - There was no conflicting evidence on that issue nor was there evidence that put Mar's credibility in issue - As there was no evidence of an intentional illegal act, it was not necessary to consider the second element of the tort - See paragraphs 71 to 109.

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, abuse of public office - Mar applied to strike the statement of claim as against him as disclosing no cause of action - The Alberta Court of Queen's Bench dismissed the application - Paragraph 43 alleged that Mar foreclosed the plaintiffs from developing the projects (by issuance of the orders) and that this act was committed with the intention to harm them - The plaintiffs appeared to be alleging that this intention to harm them was an improper purpose, making Mar's conduct unlawful - In the alternative, they contended that Mar knowingly or recklessly acted beyond his statutory authority in issuing the orders, again with the intention to harm the plaintiffs - It was not plain and obvious that the pleading did not disclose the cause of action of abuse of public office - The plaintiffs were entitled to a broad reading of the pleading - See paragraphs 46 to 57.

Crown - Topic 5149

Officials and employees - Liability of officials in tort - Defences - Good faith - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, as against Mar, inducing breach of contract - The defendants applied for summary judgment to dismiss the claim - The Alberta Court of Queen's Bench allowed the application - There was no evidence of bad faith by Mar and there was evidence that he had acted lawfully within his statutory authority - Therefore, he was not personally liable to an action in tort for inducing breach of contract - See paragraph 176.

Estoppel - Topic 1387

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - To limit the exercise of a statutory power - [See first Crown - Topic 1001 ].

Estoppel - Topic 1394

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - To defeat statutory obligation or prohibition or to contravene public policy - [See first Crown - Topic 1001 ].

Expropriation - Topic 3

Right to compensation - General principles - Expropriation defined (incl. constructive expropriation) - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging, inter alia, expropriation - The government applied for summary judgment to dismiss the claim - The Alberta Court of Queen's Bench granted summary judgment to dismiss the claim of expropriation regarding the lands for the heli-cat operation and the resort - What was at issue was a "de facto" expropriation, which were very rare and required proof of virtual extinction of an identifiable interest in land - As the plaintiffs held no lease, licence or any other interest in the heli-cat or resort lands, both of which required an environment impact analysis, they were unable to claim compensation for those lands - However, a lease and licence of occupation had been issued regarding the boat operation - In the absence of evidence as to the precise terms and conditions of the lease and the licence, the court was unable to determine what vested interest, if any, the plaintiffs held - There was a genuine issue for trial regarding expropriation of the boat operation's land - The application for summary judgment was dismissed for that aspect of the claim only - See paragraphs 118 to 146.

Practice - Topic 253

Persons who can sue and be sued - Government - Ministers in their personal capacity (incl. premier) - [See Crown - Topic 5145 and Crown - Topic 5149 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Crown - Topic 5145 ].

Practice - Topic 5374

Dismissal of action - Grounds - General and want of prosecution - Collateral attack on administrative decision - The plaintiffs were proponents of a major development in Kananaskis Country - The development included three projects, a resort, a heli-cat ski operation and a tour boat operation (the projects) - There was a four stage approval process - The boat operation passed the fourth stage and was granted a 25 year lease and licence of occupation - The heli-cat operation reached the third stage (approval in principle) and the resort reached the second stage - The government announced a new policy restricting development in the area - Following public consultation, Mar (as the Minister of Environment) determined that the projects were not in the public interest and issued ministerial orders under the Environmental Protection and Enhancement Act and the Water Act, stating that no approval or registration was to be issued for the projects - The plaintiffs commenced an action against the province and Mar, alleging abuse of public office, expropriation, breach of contract and tortious interference with business relations - Asserting collateral attack, the defendants applied for summary judgment dismissing the action - The Alberta Court of Queen's Bench rejected the collateral attack argument - The plaintiffs were entitled to advance their claims, given that they were seeking damages as a remedy - While a ministerial decision could be quashed on judicial review, if a party had suffered damages as a result of that decision, those were not recoverable except by way of an action - See paragraph 70.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - [See Crown - Topic 1551 ].

Torts - Topic 5024

Interference with economic relations - Elements of liability - Malice or intent to injure - [See Crown - Topic 1551 ].

Torts - Topic 5026

Interference with economic relations - Elements of liability - Practice - [See Crown - Topic 1551 ].

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - [See Crown - Topic 5149 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See second Crown - Topic 1646 and Crown - Topic 5145 ].

Cases Noticed:

Fullowka et al. v. Whitford (1996), 147 D.L.R.(4th) 531 (N.W.T.C.A.), leave to appeal refused (1997), 222 N.R. 320 (S.C.C.), refd to. [para. 50].

Roasting v. Lee et al. (1998), 222 A.R. 234; 63 Alta. L.R.(3d) 260 (Q.B. Master), refd to. [para. 50].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 52].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 53].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 59].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 59].

Murphy Oil Co. et al. v. Predator Corp. et al. (2004), 365 A.R. 326; 2004 ABQB 688, affd. (2006), 384 A.R. 251; 367 W.A.C. 251; 55 Alta. L.R.(4th) 1; 2006 ABCA 69, refd to. [para. 59].

Suncor Inc. v. Canada Wire and Cable Ltd., [1993] 3 W.W.R. 630 (Alta. Q.B.), refd to. [para. 60].

Georgian Glen Developments Ltd. v. Barrie (City), [2005] O.T.C. 770; 13 M.P.L.R.(4th) 194 (Sup. Ct.), refd to. [para. 61].

Stephen v. British Columbia et al., [2008] B.C.T.C. Uned. E86; 2008 BCSC 1656, refd to. [para. 65].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 68].

Powder Mountain Resorts Ltd. et al. v. British Columbia et al. (2001), 159 B.C.A.C. 14; 259 W.A.C. 14; 94 B.C.L.R.(3d) 14; 2001 BCCA 619, refd to. [para. 80].

Alberta v. Nilsson (1999), 246 A.R. 201; 70 Alta. L.R.(3d) 267; 1999 ABQB 440, affd. (2002), 320 A.R. 88; 288 W.A.C. 88; 220 D.L.R.(4th) 474; 2002 ABCA 283, leave to appeal denied (2003), 320 N.R. 398; 363 A.R. 194; 343 W.A.C. 194 (S.C.C.), refd to. [para. 80].

Granite Power Corp. v. Ontario et al., [2002] O.J. No. 2188 (Sup. Ct.), affd. in part (2004), 189 O.A.C. 128; 72 O.R.(3d) 194 (C.A.), leave to appeal refused (2005), 334 N.R. 198; 206 O.A.C. 395 (S.C.C.), refd to. [para. 80].

Three Rivers District Council v. Bank of England, [2000] 2 W.L.R. 1220; 257 N.R. 1 (H.L.), refd to. [para. 82].

Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al. (2001), 156 Man.R.(2d) 14; 246 W.A.C. 14; 2001 MBCA 40, refd to. [para. 82].

Martineau v. Alcohol and Gaming Commission (Ont.) (2007), 156 A.C.W.S.(3d) 354; 2007 ONCA 204, refd to. [para. 86].

Enterprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 88].

Welbridge Holdings Ltd. v. Winnipeg (City), [1971] S.C.R. 957, refd to. [para. 90].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 97].

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 113].

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada et al. (2003), 172 O.A.C. 202; 65 O.R.(3d) 30; 227 D.L.R.(4th) 458 (C.A.), refd to. [para. 113].

Lineal Group Inc. v. Atlantis Canadian Distributors Inc., [1998] O.A.C. Uned. 450; 42 O.R.(3d) 157 (C.A.), refd to. [para. 114].

Cheticamp Fisheries Co-Operative Ltd. et al. v. Canada (1995), 139 N.S.R.(2d) 224; 397 A.P.R. 224 (C.A.), refd to. [para. 114].

Edgeworth Helicopters Ltd. v. Salmon Arm (District), [1990] B.C.T.C. Uned. B31; 1 M.P.L.R.(2d) 261 (S.C.), refd to. [para. 115].

Dunlop v. Wollahra Municipal Council, [1981] 1 All E.R. 1202 (P.C.), refd to. [para. 115].

Canadian Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227; 345 N.R. 140; 221 B.C.A.C. 1; 364 W.A.C. 1; 2006 SCC 5, refd to. [para. 126].

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82; [1985] 3 W.W.R. 673, refd to. [para. 127].

Mariner Real Estate Ltd. v. Nova Scotia (1999), 178 N.S.R.(2d) 294; 549 A.P.R. 294; 177 D.L.R.(4th) 696 (C.A.), refd to. [para. 127].

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, refd to. [para. 127].

Cream Silver Mines Ltd. v. British Columbia (1993), 23 B.C.A.C. 250; 39 W.A.C. 250; 99 D.L.R.(4th) 199 (C.A.), leave to appeal refused (1993), 164 N.R. 80; 47 B.C.A.C. 252; 76 W.A.C. 252 (S.C.C.), refd to. [para. 134].

Kingsway General Insurance Co. v. Alberta (2005), 258 D.L.R.(4th) 507; 2005 ABQB 662, refd to. [para. 134].

Attorney General v. De Keyser's Royal Hotel Ltd., [1920] A.C. 508 (H.L.), refd to. [para. 134].

64933 Manitoba Ltd. v. Manitoba (2002), 166 Man.R.(2d) 174; 278 W.A.C. 174; 214 D.L.R.(4th) 37; 2002 MBCA 96, refd to. [para. 135].

Ponoka Savings and Credit Union Ltd. et al. v. Urban Core Developers Ltd. et al., [1988] 6 W.W.R. 321; 71 Sask.R. 260 (Q.B.), refd to. [para. 145].

Makowecki v. St. Martin (1990), 107 A.R. 346 (Q.B.), refd to. [para. 145].

Ghitter (Ron) Property Consultants Ltd. v. Beaver Lumber Co. (2003), 330 A.R. 353; 299 W.A.C. 353; 2003 ABCA 221, refd to. [para. 155].

Central Service Station Ltd. v. Newfoundland Light & Power Co. (1991), 90 Nfld. & P.E.I.R. 118; 280 A.P.R. 118 (Nfld. T.D.), refd to. [para. 156].

Lawson v. Utan Enterprises Ltd. (1979), 10 B.C.L.R. 163 (S.C.), refd to. [para. 157].

Acme Grain Co. v. Wenaus (1917), 36 D.L.R. 347 (Sask. C.A.), refd to. [para. 159].

Charlebois v. Baril, [1928] S.C.R. 88, refd to. [para. 159].

Beaudoin v. Waters et al. (1997), 203 A.R. 1; 52 Alta. L.R.(3d) 158 (Q.B.), refd to. [para. 161].

Webb & Knapp (Canada) Ltd. v. Edmonton (City), [1970] S.C.R. 588, refd to. [para. 164].

Esquimalt and Nanaimo Railway v. British Columbia (Attorney General), [1948] S.C.R. 403, varied [1950] A.C. 87 (P.C.), refd to. [para. 166].

Smoky River Coal Ltd. v. United Steelworkers of America, Local 7621 et al. (1985), 60 A.R. 36 (C.A.), refd to. [para. 166].

Harrison v. Mutual Assurance Co. of Canada (1994), 163 A.R. 152 (Q.B. Master), refd to. [para. 166].

Laker Airways Ltd. v. Department of Trade, [1977] 2 All E.R. 182 (C.A.), refd to. [para. 166].

Transamerica Life Canada Inc. et al. v. ING Canada Inc., [2003] O.A.C. Uned. 565; 68 O.R.(3d) 457 (C.A.), refd to. [para. 167].

ADGA Systems International Ltd. v. Valcom Ltd. et al. (1999), 117 O.A.C. 39; 43 O.R.(3d) 101 (C.A.), leave to appeal refused (2000), 254 N.R. 400; 134 O.A.C. 400 (S.C.C.), refd to. [para. 168].

Said v. Butt, [1920] 3 K.B. 497, refd to. [para. 168].

Authors and Works Noticed:

Fradsham, Allan A., Alberta Rules of Court Annotated 2009 (2008), pp. 197, 198 [para. 50].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (5th Ed. 2006), pp. 16 [paras. 156, 157]; 17 [paras. 157, 158]; 18 [para. 158]; 24 [para. 159]; 27 [paras. 160, 161]; 33 [para. 162]; 50, 51, 52 [para. 163].

Counsel:

Ray G. Baril, Q.C., and Kurtis K. Kruse (Chomicki Baril Mah LLP), for the applicant, Honourable Gary Mar, Q.C.;

Jeffrey H. Mayan and Sean McDonough (Alberta Justice and Attorney General), for the applicant, Her Majesty the Queen in Right of Alberta;

Daniel P. Carroll, Q.C., and Brian D. Filips (Field LLP), for the respondents.

This application was heard on January 29 and 30, 2009, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 9, 2009.