Intensity Resources Ltd. v. Dobish, (1989) 94 A.R. 366 (QB)

• Judge: Chrumka, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 28, 1989
• Citations: (1989), 94 A.R. 366 (QB)

Intensity Resources Ltd. v. Dobish (1989), 94 A.R. 366 (QB)

MLB headnote and full text

In The Matter Of The Surface Rights Act, S.A. 1983 Chapter S-27.1, As Amended;

And In The Matter Of Certain Lands Within The Se1/4 Of Section 31, Township 79, Range 5, West Of The 6th Meridian, In The Province Of Alberta, Excepting Thereout All Mines And Minerals;

And In The Matter Of An Appeal From The Decision And Order Of The Surface Rights Board, Being Decision 87/0140 And Order No. 1058/87 Received By The Appellant, Intensity Resources Ltd., June 15, 1987, Setting The Amount Of Compensation To Be Paid By The Appellant To The Respondent, Mike Dobish, Pursuant To Section 25(1) Of The Act;

And In The Matter Of Section 26(1) Of The Surface Rights Act, S.A. 1983, Chapter S-27.1, As Amended.

Intensity Resources Ltd (appellant) v. Mike Dobish (respondent)

(Action No. 8704-012640)

Indexed As: Intensity Resources Ltd. v. Dobish

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Chrumka, J.

February 28, 1989.

Summary:

Intensity Resources obtained a right of entry order respecting 3.84 acres of land owned by Dobish, and thereafter drilled and capped a gas well. The Surface Rights Board awarded compensation of $8,500.00 for the first year and $2,500.00/year thereafter, based on a pattern of comparable agreements in the area. Intensity Resources appealed.

The Alberta Court of Queen's Bench dismissed the appeal. The court agreed that the Board erred in relying on evidence not disclosed to the parties, but there was no cogent evidence that the result reached by the Board should be different.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by tribunal in making its decision - The Surface Rights Board fixed compensation to a landowner for a right of entry order on the basis of a pattern of comparable agreements in the area - The Board found such a pattern partly on the basis of information not placed before it by the parties and not disclosed to the parties by the Board - The Alberta Court of Queen's Bench held that the Board erred in failing to disclose the information it relied upon.

Mines and Minerals - Topic 6103

Operation of mines, quarries and wells - Compensation to owners of surface rights - Relevant considerations - Pattern of negotiated settlement - Intensity Resources obtained a right of entry order over 3.84 acres of land owned by Dobish - The Surface Rights Board fixed compensation at $8,500.00 for the first year plus $2,500.00/year thereafter, based on the pattern of comparable agreements approach - The Alberta Court of Queen's Bench held that the Board did not err in fixing compensation on that basis and there was no cogent evidence that the result reached by the Board should be different.

Mines and Minerals - Topic 6144

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Judicial review of awards - Scope of - Pursuant to s. 26(6) of the Surface Rights Act an appeal from a compensation award by the Surface Rights Board was in the form of a "new hearing" - The Alberta Court of Queen's Bench stated that the court was not to ignore the Board's fact findings unless they were clearly demonstrated by cogent evidence to be wrong - If the Board's findings were not demonstrated to be wrong they should be given substantial evidentiary value - In cases where the Board's reasons were lacking or scarce the person challenging the Board's decision was still required to prove by cogent evidence that the result reached by the Board should be different.

Cases Noticed:

Dome Petroleum Limited v. Richards and Alberta Power Ltd. (1985), 66 A.R. 245; 42 Alta. L.R.(2d) 97 (Q.B.), consd. [para. 18].

Champlin Canada Ltd. v. Calco Ranches Limited (1986), 72 A.R. 154 (Q.B.), refd to. [para. 27].

Lamb v. Canadian Oil and Gas Ltd., [1977] 1 S.C.R. 517; 8 N.R. 613, consd. [para. 41].

Caswell v. Alexandra Petroleums Ltd., [1972] 3 W.W.R. 706, refd to. [para. 42].

Whitehouse v. Sun Oil Co. Ltd., [1982] 6 W.W.R. 289; 40 A.R. 380 (C.A.), refd to. [para. 44].

TransAlta Utilities Corporation v. Kube (1987), 77 A.R. 290, refd to. [para. 45].

Paloma Petroleum Ltd. v. Hutterian Brethren Church of Smoky Lake (1987), 77 A.R. 288 (C.A.), refd to. [para. 45].

Nova, An Alberta Corporation v. Bain et al., [1985] 4 W.W.R. 460, refd to. [para. 47].

Cabre Exploration Ltd. v. Arndt and Provicial Planning Director (1986), 69 A.R. 279 (Q.B.), refd to. [para. 47].

Livingston v. Siebens Oil & Gas Ltd., [1978] 3 W.W.R. 484; 8 A.R. 439, refd to. [para. 50].

Nova, An Alberta Corporation v. Petryshen et al. (1982), 23 Alta. L.R.(2d) 193, refd to. [para. 52].

Markovich Bros. Farming Co. Ltd. v. PanCanadian Petroleum Ltd. (1984), 54 A.R. 72; 31 L.C.R. 152 (Q.B.), refd to. [para. 61].

Statutes Noticed:

Surface Rights Act, S.A. 1983, c. S-27.1, sect. 11(2) [para. 55]; sect. 25(1) [para. 11]; sect. 26(1), sect. 26(6) [para. 9]; sect. 26(7) [para. 10]; sect. 26(9)(a) [para. 76].

Counsel:

K.W. Stilwell (Burstall & Company), for the appellant;

J.D. Carter (Carter, Lock and Repka), for the respondent.

This appeal was heard before Chrumka, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following judgment on February 28, 1989: