Remington Development Corp. v. Enmax Power Corp. et al., 2011 ABQB 694

• Judge: Park, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 12, 2011
• Citations: 2011 ABQB 694;(2011), 525 A.R. 379 (QB)

Remington Dev. Corp. v. Enmax Power (2011), 525 A.R. 379 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. NO.123

Remington Development Corporation (plaintiff) v. Enmax Power Corporation, Enmax Corporation and the City of Calgary (defendants)

(0801-14506; 2011 ABQB 694)

Indexed As: Remington Development Corp. v. Enmax Power Corp. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Park, J.

November 10, 2011.

Summary:

In 1948, CPR granted Calgary Power the right to place transmission towers and lines over certain CPR-owned city property. The agreement provided for termination of the agreement on three months' notice (Calgary Power to remove towers and lines). There were two subsequent agreements between CPR and Calgary Power in 1970. In 1997, Calgary Power assigned the agreements, with CPR's consent, to Enmax. In 2002, a developer purchased the CPR property for development purposes. CPR assigned the agreements to the developer without seeking or obtaining Enmax's consent. The developer gave Enmax three months' notice to remove the towers and lines. Enmax refused, citing the $11 Million cost and inconvenience. Enmax argued that the agreements granted personal licences which could not be assigned without its consent. At issue on a court-ordered special application was (1) whether the purported assignments from the CPR to the developer were valid and binding on Enmax and (2) whether the developer was entitled to give Enmax three months' notice requiring removal of the transmission towers and lines.

The Alberta Court of Queen's Bench held that the assignment of the agreements to the developer was valid and binding on Enmax. The developer was contractually entitled to give Enmax three months' notice to remove the towers and lines. The court directed Enmax to apply to the Alberta Utilities Commission to remove and relocate the transmission towers and lines.

Contracts - Topic 4701

Discharge and termination - By notice - General - In 1948, CPR granted Calgary Power the right to place transmission towers and lines over certain CPR-owned city property - The agreement provided for termination of the agreement on three months' notice (Calgary Power to remove towers and lines) - There were two subsequent agreements between CPR and Calgary Power in 1970 - In 1997, Calgary Power assigned the agreements, with CPR's consent, to Enmax - In 2002, a developer purchased the CPR property for development purposes - CPR assigned the agreements to the developer without seeking or obtaining Enmax's consent - The developer gave Enmax three months' notice to remove the towers and lines - Enmax refused, citing the $11 Million cost and inconvenience - Enmax argued that the agreements granted personal licences which could not be assigned without its consent - At issue on a court-ordered special application was (1) whether the purported assignments from the CPR to the developer were valid and binding on Enmax and (2) whether the developer was entitled to give Enmax three months' notice requiring removal of the transmission towers and lines - The Alberta Court of Queen's Bench held that the assignment of the agreements to the developer was valid and binding on Enmax - The developer was contractually entitled to give Enmax three months' notice to remove the towers and lines - The court directed Enmax to apply to the Alberta Utilities Commission to remove and relocate the transmission towers and lines - A utility right-of-way was a privilege which could be terminated on notice - Enmax knew this when it took its assignment from Calgary Power - If the assignment of the agreements by CPR to the developer was valid, Enmax was bound by that assignment - The court rejected the argument that the agreements were personal licences which could not be transferred or assigned - The assignment also did not increase the burden on Enmax - Enmax's burden of having to remove the towers and lines remained a constant threat since it took the assignment from Calgary Power - The fact that the developer gave notice, where CPR never had in the past, did not increase the burden.

Contracts - Topic 6803

Assignment - General - What constitutes an assignment (incl. validity of) - [See Contracts - Topic 4701 ].

Practice - Topic 3643

Evidence - Affidavits - Sufficiency of - Statement of knowledge of relevant facts - The Alberta Court of Queen's Bench agreed that "corporations can supply evidence through its corporate representative who can acquire personal knowledge and information by reviewing relevant and reliable corporate records" - See paragraph 31.

Real Property - Topic 7237

Easements, licences and prescriptive rights - Licences - What constitutes - [See Contracts - Topic 4701 ].

Real Property - Topic 7294

Easements, licences and prescriptive rights - Extent of right granted - Right to install power lines - [See Contracts - Topic 4701 ].

Cases Noticed:

Alberta (Treasury Branches) v. Leahy et al. (1999), 234 A.R. 201 (Q.B.), refd to. [para. 31].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 34].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 34].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 34].

Toronto (City) v. Jarvis (1895), 25 S.C.R. 237, refd to. [para. 42].

Forestburg (Village) v. James, [1998] A.R. Uned. 559 (Q.B.), refd to. [para. 42].

Devon Canada Corp. v. Canadian Pacific Railway Co. et al., [2009] A.R. Uned. 233; 2009 ABQB 143, refd to. [para. 42].

Wiener v. Elgin (County), [1974] O.W.N. 360, refd to. [para. 43].

Canadian Electrical Association v. Canadian National Railways, [1932] S.C.R. 451, affd. [1934] J.C.J. No. 1 (P.C.), refd to. [para. 48].

Thomas v. Sorrell, [1634] Vaugh 330e; 134 E.R. 1098, refd to. [para. 51].

National Trust Co. v. Mead, [1990] 2 S.C.R. 410; 112 N.R. 1; 87 Sask.R. 161, refd to. [para. 56].

Fredrickson v. Insurance Corp. of British Columbia (1986), 28 D.L.R.(4th) 414 (B.C.C.A.), refd to. [para. 59].

Black Hawk Mining Inc. v. Provincial Assessor (Man.) et al. (2002), 163 Man.R.(2d) 215; 269 W.A.C. 215; 2002 CarswellMan 213; 2002 MBCA 51, refd to. [para. 61].

Lee et al. v. Pointe of View Developments (Encore) Inc. et al., [2010] A.R. Uned. 620; [2010] A.W.L.D. 5034 (Q.B.), refd to. [para. 64].

Tru-Wall Group Ltd. v. Stadium Corp. of Ontario Ltd., [1995] O.J. No. 2610 (Gen. Div.), refd to. [para. 80].

Authors and Works Noticed:

Chitty on Contracts (13th Ed. 2008), vol. 1, para. 19-077 [para. 57].

Gale on Easements (11th Ed. 1932), p. 1 [para. 43].

Gale on Easements (18th Ed.), p. 80 [para. 52].

Ziff, Bruce, Principles of Property Law (5th Ed. 2010), pp. 327 to 380 [para. 45].

Counsel:

Grant Vogeli and Sonya A. Morgan (Burnet, Duckworth & Palmer LLP), for the plaintiff;

Dalton W. McGrath, Q.C., and Michael O'Brien (Blake Cassels & Graydon LLP), for the defendants.

This application was heard on April 12, 2011, before Park, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on November 10, 2011.