Stewart Estate et al. v. TAQA North Ltd. et al., 2015 ABCA 357

• Judge: Rowbotham, McDonald and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 19, 2015
• Citations: 2015 ABCA 357;(2015), 607 A.R. 201

Stewart Estate v. TAQA North Ltd. (2015), 607 A.R. 201; 653 W.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. NO.096

Lynda Calder in her capacity as Executrix of the Estate of Merville V. Stewart (Deceased), Lynda Calder, Morgan Stewart, Cody Stewart, Cody Stewart in her capacity as Administrator or Litigation Representative for the Estate of James D. Stewart (Deceased), and as Litigation Representative for Morgan Stewart, Jerome Development Limited, Bowen Family Properties Ltd., Ronald B. Pole, Kevin R. Pole, Danny G. Oneil in his capacity as Executor of the Estate of Mabel B. Oneil (Deceased), Robert Copley, Karen Nell Copley, Margaret Alice Demers, Mary Jean Biggar, Goldie Alberta Danielsen, Edna Keam, Wilma Marshall, Laurel Lee McLaren (appellants)

(not parties to the cross-appeal of Coastal Resources Ltd.)

(not parties to the cross-appeal of Nexen Inc. and ExxonMobil Canada Ltd. (plaintiffs) and 1088294 Alberta Ltd. (appellant)

(cross-respondent to the cross-appeal of Coastal Resources Ltd.)

(cross-respondent to the cross-appeal of Nexen Inc. and ExxonMobil Canada Ltd.)

(plaintiff/defendant by counterclaim) and J. Timothy Bowes (appellant)

(not a party to the cross-appeal of Coastal Resources Ltd.)

(cross-respondent to the cross-appeal of Nexen Inc. and ExxonMobil Canada Ltd.)

(defendant by counterclaim) v. TAQA North Ltd., Esprit Exploration Ltd., Bonavista Energy Corporation, and Triquest Energy Corp. (respondents)

(not parties to the cross-appeal of Coastal Resources Ltd.)

(not parties to the cross-appeal of Nexen Inc. and ExxonMobil Canada Ltd. (defendants) and Coastal Resources Limited (respondent/cross-appellant)

(not a party to the cross-appeal of Nexen Inc. and ExxonMobil Canada Ltd.)

(defendant/plaintiff by counterclaim) and Nexen Inc. and ExxonMobil Canada Ltd. (respondents/cross-appellants)

(not a party to the cross-appeal of Coastal Resources Ltd.)

(defendants/plaintiffs by counterclaim)

(1301-0360-AC; 2015 ABCA 357)

Indexed As: Stewart Estate et al. v. TAQA North Ltd. et al.

Alberta Court of Appeal

Rowbotham, McDonald and O'Ferrall, JJ.A.

November 19, 2015.

Summary:

The defendant oil and gas companies were the lessees under five freehold petroleum and natural gas leases. The plaintiffs were some of the current landowners and a top-lessee, whose top-lease became effective only if the leases were terminated. At issue in the plaintiffs' action was whether the leases were terminated when the defendants ceased operations and production from a well between 1995 and 2001. Specifically, the issue was whether the leases required the defendants to operate the well at a loss or nominal return to preserve the leases. Preliminary issues were: (1) whether the registered landowners to which two of the leases applied were the proper parties to seek a declaration that those leases had terminated; (2) whether the top-lessee plaintiff had standing; (3) whether any of the plaintiffs' claims were barred by the Limitations Act; and (4) whether any of the claims were barred in whole or in part by estoppel, laches or acquiescence. The defendants counter-claimed, alleging champerty and maintenance.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 576 A.R. 57, determined the preliminary issues as follows: (1) the registered landowners to which two of the leases applied were not the proper parties to seek a declaration that those leases had terminated, because there were other interested parties not before the court; (2) the top-lessee plaintiff had standing to argue the issue of lease validity, but had no claim for damages; (3) the plaintiffs' claims for unjust enrichment, trespass and conversion were barred by the expiration of the limitation period; and (4) no claims were barred in whole or in part by estoppel, laches or acquiescence. The court dismissed the plaintiffs' action. The well was shut-in for reasons permitted under the leases. The leases had not terminated. Alternatively, if the claims succeeded, damages would have been in restitution based on a royalty or royalty plus bonus approach, and not on the basis of disgorgement of profits. The court dismissed the counter-claim. The plaintiffs appealed. The defendants cross-appealed.

The Alberta Court of Appeal allowed the appeal in part and dismissed the cross-appeal. On the core issue of whether the oil and gas leases terminated, O'Ferrall, J.A. (McDonald, J.A., concurring), held that the leases terminated in 1995 and that there was a sufficient basis for finding that all five leases terminated. Rowbotham, J.A., found that the leases terminated in January 2000, and would have upheld the trial judge's provisional conclusion that no declaration of lease validity could be made on two of the five leases in the absence of all the parties vying for the fee simple title to those quarter sections (the Snell/Wheatland issue). On the issue of the standard of appellate review of the trial judge's interpretation of the leases, McDonald, J.A. (O'Ferrall, J.A., concurring), determined the standard of review to be correctness. Rowbotham, J.A., found the standard to be reasonableness. On the issue of the date when the plaintiffs were entitled to a remedy, Rowbotham, J.A. (McDonald, J.A., concurring), found it to be August 9, 2003, two years prior to the issuance of the statement of claim. O'Ferrall, J.A., determined that the plaintiffs were entitled to a remedy from the date it was made clear to the defendants that the plaintiffs no longer consented to continued production. The court unanimously agreed that the so-called "royalty and bonus" remedy provisionally applied by the trial judge was inappropriate. Rowbotham and O'Ferrall, JJ.A., ordered the defendants to disgorge revenues less production, gathering and processing costs (i.e., on a net basis in accordance with the January 6, 2012 "Agreed Statement of Facts Pertaining to Revenues, Expenses and Royalties" (the so-called "mild rule"). McDonald, J.A., would have ordered disgorgement of the defendants' gross revenues (the so-called "harsh rule"). Rowbotham and McDonald, JJ.A., agreed that the Irwin Group gave leave and licence from December 5, 2005 to January 12, 2007. The court unanimously agreed with the trial judge that the top lessee had no independent claim for damages. As regards the liability of Esprit to disgorge the royalties it earned and account for the royalties it actually received, O'Ferrall, J.A. (McDonald, J.A., concurring), allowed the appeal. Rowbotham, J.A., would have dismissed the appeal. The cross appeal respecting champerty and maintenance was dismissed for the reasons of O'Ferrall, J.A. (Rowbotham and McDonald, JJ.A.,concurring).

Contracts - Topic 4062

Remedies for breach - Accounting of profits (disgorgement) - When available or appropriate - [See both Damages - Topic 4212 ].

Contracts - Topic 6761

Illegal contracts - Agreements contrary to public policy - Champerty and maintenance - General - [See Torts - Topic 6280 ].

Damages - Topic 1820

Torts affecting goods - Conversion - Loss of profits - [See both Damages - Topic 4212 ].

Damages - Topic 4212

Torts affecting land and buildings - Normal measure - Trespass - The Alberta Court of Appeal, per Rowbotham, J.A., stated that "case law and academic commentary demonstrate that remedies for trespass in the context of removal of a resource range along a continuum based on courts' perceptions of what is just and equitable in the face of the trespasser's conduct. If a trespasser's conduct warrants punishment, it may be required to disgorge the entirety of the benefit gained from the trespass with little or no allowance for costs incurred in earning that benefit or improvements made to the property. This is the so called 'harsh' rule. The harsh rule is designed to deter wilful trespass. At the other end of the spectrum, when the trespass is not tainted by fraud or bad faith, is the 'mild' rule which requires the trespasser to disgorge the revenues less certain expenses, but with no allowance for profit to the trespasser. There has been a further refinement to the mild rule. When neither party knew of the trespass and the property owner would have been unable to realize the benefit the trespasser obtained from the trespass, courts have permitted the trespasser to retain the benefit of the trespass and ordered the trespasser to pay the property owner a reasonable fee for the use of the property. This is known as the 'royalty method'. The lessee pays the property owner contractually agreed royalties and any bonus associated with negotiating a new lease." - See paragraph 196.

Damages - Topic 4212

Torts affecting land and buildings - Normal measure - Trespass - The defendant oil and gas companies were the lessees under five freehold petroleum and natural gas leases - The plaintiffs were some of the current landowners and a top-lessee, whose top-lease became effective only if the leases were terminated - The plaintiffs sought a declaration that the leases were terminated when the defendants ceased operations and production from a well between 1995 and 2001 - The plaintiffs sought damages for unjust enrichment based on "waiver of tort" for disgorgement of profits for 2001 to 2011 (period of production under invalid leases), and for trespass and conversion - The trial judge dismissed the action where the leases had not been terminated, but provisionally awarded damages in restitution based on a royalty or royalty plus bonus approach, and not on the basis of disgorgement of profits - If the lease had been terminated by suspending production for 5.5 years, the trial judge was not satisfied that the defendants knew or should have known that the leases had terminated - There was no bad faith or over-holding by the defendants - Disgorgement of profits was a severe remedy limited to circumstances requiring more punitive measures or where the plaintiffs lost a realistic opportunity to use the property in the same manner as the defendants - The Alberta Court of Appeal unanimously agreed that the so-called "royalty and bonus" remedy provisionally applied by the trial judge was inappropriate - Rowbotham and O'Ferrall, JJ.A., ordered the defendants to disgorge revenues less production, gathering and processing costs (i.e., on a net basis in accordance with the January 6, 2012 "Agreed Statement of Facts Pertaining to Revenues, Expenses and Royalties" (the so-called "mild rule")), stating that "disgorgement of revenue with no set-off for expenses incurred in earning that revenue (the harsh rule) should no longer be available to remedy a trespass of this nature. That remedy does more than award disgorgement of the tortfeasor's gain; it imposes a punitive sanction." - The plaintiffs were entitled to this remedy from August 9, 2003, two years prior to the issuance of the statement of claim - McDonald, J.A., would have ordered disgorgement of the defendants' gross revenues (the so-called "harsh rule") - See paragraphs 196 to 234.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The defendant oil and gas companies were the lessees under five freehold petroleum and natural gas leases - The plaintiffs were some of the current landowners and a top-lessee, whose top-lease became effective only if the leases were terminated - The plaintiffs sought a declaration that the leases were terminated when the defendants ceased operations and production from a well between 1995 and 2001 - The plaintiffs also sought damages for unjust enrichment, trespass and conversion - The action was not commenced until August 2005 - The trial judge held that the claims in unjust enrichment, trespass and conversion were barred by the two year limitation period in s. 3(1)(a) of the Limitations Act on the basis that the plaintiffs, or their predecessors in interest, knew or ought to have known that the injuries complained of occurred more than two years prior to commencing the action - More than two years prior to August 2005, the plaintiffs knew that production under the lease ceased by the substitution of shut-in royalty payments for production royalty payments - Accordingly, the plaintiffs "ought to have known" of the injury that gave rise to the unjust enrichment, trespass and conversion claims more than nine years before the action was commenced - The 10 year ultimate limitation period (s. 3(1)(b)) barred any claims that arose from the plaintiffs' allegations of historical discriminatory production practices and the failure to drill in a specified zone - The court stated that "the Limitations Act does not apply to the Plaintiffs' applications for declaratory orders with respect to the status of the leases" - The court held that the plaintiffs were not barred from challenging the validity of the leases and pursuing their damages claims by reason of estoppel, laches or acquiescence - The Alberta Court of Appeal (Rowbotham and McDonald, JJ.A.), held that the trespasses under invalid leases that had terminated were continuing torts - Accordingly, the two year limitation period precluded the plaintiffs' claim from pre-dating two years prior to the statement of claim being issued - Prior to that, the plaintiffs knew or ought to have known of the facts that gave rise to their cause of action - See paragraphs 172 to 183.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 1907

Actions - General - Declaratory relief - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 3162

Actions in tort - Trespass or injury to property - When time begins to run - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9863

Exceptions - Particular exceptions - Declaration about title to property - [See Limitation of Actions - Topic 15 ].

Mines and Minerals - Topic 8138

Oil and gas - Leases - Termination - General - The defendant oil and gas companies were the lessees under five freehold petroleum and natural gas leases - The plaintiffs were some of the current landowners and a top-lessee, whose top-lease became effective only if the leases were terminated - At issue was whether the leases were terminated when the defendants ceased operations and production from a well between 1995 and 2001 due to uneconomical gas prices and higher processing costs attributable to that well - Specifically, the issue was whether the leases required the defendants to operate the well at a loss or nominal return to preserve the leases - The leases provided that if, during the secondary term, drilling or working operations were interrupted or suspended due to any cause whatsoever beyond the defendants' control, or if any well was shut-in, capped, suspended, etc., due to a lack of or an intermittent market, it would not result in the termination of the lease - The trial judge held that the leases were not terminated - A "lack of or an intermittent market" included an "uneconomic or unprofitable market" - The phrase "any cause whatsoever beyond the Lessee's reasonable control" was not restricted to events constituting an "act of God" or an event of a "supervening sometimes supernatural" nature that made performance impossible - It was not a true force majeure provision - The 1995 shut-in of the well was justified, appropriate and commercially prudent given that the well generated a negative cash flow and was operating at a loss, estimates of the remaining reserves were minimal, the price of gas was low, and the net price of sulphur (a byproduct of a sour gas well) was negative - The trial judge accepted that the well was shut-in for causes beyond the defendants' control - The Alberta Court of Appeal (O'Ferrall and McDonald, JJ.A.) disagreed - All five leases terminated in 1995 when production ceased - A lack of or an intermittent market was not the reason for ceasing production - There was no "interruption" or "suspension" of production - There was a complete "abandonment" of production - The court stated that "Declining production or the inability of a well to produce in quantities in which revenues exceed expenses triggers termination. ... it strains common sense to think that a lessor would tie up it land past the primary term for a well which lacked commercial viability" - See paragraphs 327 to 407.

Mines and Minerals - Topic 8139

Oil and gas - Leases - Termination - During secondary term - [See Mines and Minerals - Topic 8138 ].

Mines and Minerals - Topic 8386

Oil and gas - Wells - Drilling of - Conversion (incl. compensation) - [See second Damages - Topic 4212 ].

Practice - Topic 351

Parties - Joinder of parties - General - Person whose participation is necessary for full and effectual adjudication - [See Practice - Topic 5668 ].

Practice - Topic 5668

Judgments and orders - Declaratory judgments - Parties - The defendant oil and gas companies were the lessees under five freehold petroleum and natural gas leases - The plaintiffs were some of the current landowners and a top-lessee, whose top-lease became effective only if the leases were terminated - At issue in the plaintiffs' action was whether the leases were terminated when the defendants ceased operations and production from a well between 1995 and 2001 - A preliminary issue was whether the registered landowners to which two of the leases applied were not the proper parties to seek a declaration that those leases had terminated, because there were other interested parties not before the court who claimed an interest in the lease - There was a question of the plaintiffs' predecessor transferring his interests to two other companies and those companies were not added as parties to this declaratory action - The trial judge stated that "The Plaintiffs, as the parties who seek declarations that the leases have terminated, have the burden of demonstrating that the parties before the Court are 'not only interested parties, but are the only interested parties to the application' ... what [the plaintiffs] seek are declarations that would affect the validity of leases that it appears from the evidence may have been assigned to [two other companies], leases pursuant to which [those two companies] have received significant royalty payments from 1977 to the present. ... The failure of the Plaintiffs to name [the other two companies] as parties to this action is a fundamental and fatal flaw in their case" - The Alberta Court of Appeal (O'Ferrall and McDonald, JJ.A.) held that "the dispute over who is the lessor of the natural gas notionally underlying these lands is no reason to decline to rule on the validity of these leases" - See paragraph 453.

Practice - Topic 8808

Appeals - General principles - Duty of appellate court respecting conclusions or interpretation of trial judge (incl. contractual interpretation) - The Alberta Court of Appeal (McDonald and O'Ferrall, JJ.A.) held that the standard of review of a trial judge's interpretation of the provisions of oil and gas leases was correctness - Although the standard of review re contractual interpretation was generally reasonableness (Sattva Capital (SCC 2014)), the interpretation of contracts of adhesion (which basically standard oil and gas leases were) required interpretations that were certain and predictable for the benefit of both the industry and their customers - See paragraphs 269 to 284.

Restitution - Topic 128

Unjust enrichment - Remedies - Waiver of tort - [See second Damages - Topic 4212 ].

Torts - Topic 6280

Abuse of legal procedure - Maintenance and champerty - General - The defendant oil and gas companies were the lessees under five freehold petroleum and natural gas leases - The plaintiffs were some of the current landowners and a top-lessee, whose top-lease became effective only if the leases were terminated - The top-lessee was a stranger to the lawsuit, but promoted, directed and assisted in funding the litigation, including indemnifying the plaintiffs against any adverse costs award, in exchange for a share of any damages awarded - The defendants argued that the top lessee's involvement was champertous - The Alberta Court of Appeal affirmed that there was no champerty or maintenance arising from the top-lessee's participation - Maintenance involved providing financial assistance to another to conduct litigation - Champerty involved not only providing financial support, but sharing in the fruits of the litigation - However, the top-lessee was not a perfect stranger to the litigation - The top lessee, who would benefit from a finding that the leases terminated, had a legitimate business interest for ensuring that the litigation proceeded - Given this interest in the litigation, the funding and sharing of the fruits of the litigation was not champertous - See paragraphs 469 to 482.

Cases Noticed:

T.D.L. Petroleums Inc. v. Montreal Trust Co. et al., 2001 SKQB 360, affd. (2002), 223 Sask.R. 276; 277 W.A.C. 276; 2002 SKCA 91, refd to. [para. 42].

Freyberg v. Fletcher Challenge Oil and Gas Inc. et al. (2007), 428 A.R. 102; 2007 ABQB 353, refd to. [para. 42].

Freyberg v. Fletcher Challenge Oil and Gas Inc. et al. (2005), 363 A.R. 35; 343 W.A.C. 35; 2005 ABCA 46, refd to. [para. 51].

Omers Energy Inc. v. Energy Resources Conservation Board (Alta.) et al. (2011), 513 A.R. 292; 530 W.A.C. 292; 2011 ABCA 251, refd to. [para. 53].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 54].

Vallieres et al. v. Vozniak (2014), 580 A.R. 326; 620 W.A.C. 326; 5 Alta. L.R.(6th) 28; 2014 ABCA 290, refd to. [para. 58].

Anderson v. Bell Mobility Inc. (2015), 593 A.R. 79; 637 W.A.C. 79; 2015 NWTCA 3, refd to. [para. 60].

Kassburg v. Sun Life Assurance Co. of Canada (2014), 328 O.A.C. 244; 379 D.L.R.(4th) 665; 2014 ONCA 922, refd to. [para. 60].

De Beers Canada Inc. v. Ootahpan Co. et al., [2014] O.A.C. Uned. 636; 2014 ONCA 723, refd to. [para. 60].

Weyburn Security Co. v. Sohio Petroleum Co., [1971] S.C.R. 81; 13 D.L.R.(3d) 340, refd to. [para. 61].

Canada-Cities Service Petroleum Corp. v. Kininmonth (1963), 42 D.L.R.(2d) 56 (Alta. C.A.), affd. [1964] S.C.R. 439; 45 D.L.R.(2d) 36, refd to. [para. 61].

Canadian Superior Oil of Canada Ltd. v. Kanstrup, [1965] S.C.R. 92; 47 D.L.R.(2d) 1, refd to. [para. 61].

Durish v. White Resource Management Ltd. and Royal Bank of Canada (1987), 82 A.R. 66; 55 Alta. L.R.(2d) 47 (Q.B.), affd. (1988), 63 Alta. L.R.(2d) 265 (C.A.), refd to. [para. 61].

East Crest Oil Co. v. Strohschein and Strohschein, [1952] 2 D.L.R. 432 (Alta. C.A.), refd to. [para. 61].

Blair Estate v. Altana Exploration Co. (1987), 53 Alta. L.R.(2d) 419 (C.A.), refd to. [para. 65].

Atlantic Paper Stock Ltd. et al. v. St. Anne-Nackawic Pulp and Paper Co. et al., [1976] 1 S.C.R. 580; 4 N.R. 539; 10 N.B.R.(2d) 513; 4 A.P.R. 513; 56 D.L.R.(3d) 409, refd to. [para. 86].

Burns (P.) Resources Ltd. v. Locke, Stock & Barrel Co., [2014] A.R. Uned. 29; [2014] A.W.L.D. 1034; 2014 ABCA 40, refd to. [para. 93].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 114 D.L.R.(4th) 419; 71 O.A.C. 241, refd to. [para. 109].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 111].

Pedherney v. Jensen et al. (2011), 499 A.R. 216; 514 W.A.C. 216; 2011 ABCA 9, refd to. [para. 112].

Nova, An Alberta Corporation v. Guelph Engineering Co. and Daniel Valve Co. et al. (1989), 100 A.R. 241; 1989 ABCA 253, refd to. [para. 112].

Bell v. Tilden Car Rental Inc. (1996), 44 Alta. L.R.(3d) 152; 1996 ABCA 318, refd to. [para. 112].

Labbee et al. v. Peters et al. (1999), 237 A.R. 382; 197 W.A.C. 382; 1999 ABCA 246, refd to. [para. 112].

Wheatland Farming Co. v. Stewart Estate et al., [2014] A.R. Uned. 300; [2014] A.W.L.D. 4297; 2014 ABCA 296, refd to. [para. 131].

Lanstrom Developments Ltd. v. Passburg Petroleums Ltd. (1984), 53 A.R. 96; 30 Alta. L.R.(2d) 379 (C.A.), refd to. [para. 142].

Alberta (Treasury Branches) v. Ghermezian et al. (2000), 266 A.R. 170; 228 W.A.C. 170; 2000 ABCA 228, refd to. [para. 151].

Laasch et al. v. Turenne (2012), 522 A.R. 168; 544 W.A.C. 168; 2012 ABCA 32, refd to. [para. 160].

Mayfair Property Co. v. Johnston, [1894] 1 Ch. 508, refd to. [para. 166].

Jones v. Llanrwst Urban District Council, [1911] 1 Ch. 393, refd to. [para. 166].

HSBC Rail (UK) Ltd. v. Network Rail Infrastructure Ltd. (formerly Railtrack plc), [2005] E.W.C.A. Civ. 1437; [2006] 1 All E.R. 343, refd to. [para. 166].

340909 Ontario Ltd. v. Huron Steel Products (Windsor) Inc. (1992), 10 O.R.(3d) 95; 35 A.C.W.S.(3d) 309 (C.A.), refd to. [para. 167].

Harshenin v. Bayoff (1991), 49 C.P.C.(2d) 55; 27 A.C.W.S.(3d) 508 (B.C.S.C.), refd to. [para. 169].

Duck Lake Feed Processors Ltd. v. Badowsky (1983), 26 Sask.R. 46 (Q.B.), varied (1987), 54 Sask.R. 296; 3 A.C.W.S.(3d) 72 (C.A.), refd to. [para. 169].

Williams v. Mulgrave (Town) et al. (2000), 183 N.S.R.(2d) 147; 568 A.P.R. 147 (C.A.), refd to. [para. 172].

Canadian Natural Resources Ltd. v. Jensen Resources Ltd. (2013), 566 A.R. 76; 597 W.A.C. 76; 2013 ABCA 399, refd to. [para. 173].

James H. Meek Trust et al. v. San Juan Resources Inc. et al. (2005), 376 A.R. 202; 360 W.A.C. 202; 52 Alta. L.R.(4th) 1; 2005 ABCA 448, refd to. [para. 173].

Salna v. Awad (2011), 499 A.R. 264; 514 W.A.C. 264; 2011 ABCA 20, refd to. [para. 175].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 198].

de Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64; 408 N.R. 80; 2010 SCC 51, refd to. [para. 198].

Hill Estate v. Chevron Standard Ltd. et al., [1993] 2 W.W.R. 545; 83 Man.R.(2d) 58; 36 W.A.C. 58 (C.A.), refd to. [para. 200].

Montreal Trust Co. v. T.D.L. Petroleums Inc. et al. (2004), 254 Sask.R. 38; 336 W.A.C. 38; 243 D.L.R.(4th) 317; 2004 SKCA 116, refd to. [para. 205].

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

Bank of America Canada v. Mutual Trust Co. et al., [2002] 2 S.C.R. 601; 287 N.R. 171; 159 O.A.C. 1; 2002 SCC 43, refd to. [para. 213].

Nunavut Tunngavik Inc. v. Canada (Attorney General) et al. (2014), 580 A.R. 75; 620 W.A.C. 75; 2014 NUCA 2, refd to. [para. 213].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 99 D.L.R.(4th) 577, refd to. [para. 214].

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., [2014] 1 S.C.R. 177; 453 N.R. 273; 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, refd to. [para. 217].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 218].

Warman International Ltd. v. Dwyer (1995), 128 A.L.R. 201; 182 C.L.R. 570 (Aust. H.C.), refd to. [para. 218].

Bowen Contracting Ltd. v. B.C. Log Spill Recovery Co-operative Association et al. (2009), 277 B.C.A.C. 128; 469 W.A.C. 128; 313 D.L.R.(4th) 498; 2009 BCCA 457, refd to. [para. 220].

Georgian Bluffs (Township) v. Moyer (2012), 298 O.A.C. 121; 2012 ONCA 700, refd to. [para. 220].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193, refd to. [para. 221].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 221].

Signalta Resources Ltd. v. Dominion Exploration Canada Ltd., [2008] A.R. Uned. 353; 2008 ABCA 437, refd to. [para. 225].

Signalta Resources Ltd. v. Dominion Exploration Canada Ltd. et al., [2007] A.R. Uned. 628; 2007 ABQB 636, refd to. [para. 225].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25, refd to. [para. 241].

Bedard v. Martyn et al. (2010), 469 A.R. 322; 470 W.A.C. 322; 2010 ABCA 3, refd to. [para. 241].

Trident Holdings Ltd. v. Danand Investments Ltd. et al. (1988), 25 O.A.C. 378; 64 O.R.(2d) 65; 49 D.L.R.(4th) 1 (C.A.), refd to. [para. 257].

CDM Direct Mail et al. v. Centre for Immigration Policy Reform (2015), 600 A.R. 253; 645 W.A.C. 253; 254 A.C.W.S.(3d) 837; 2015 ABCA 168, refd to. [para. 269].

Fontaine et al. v. Canada (Attorney General) et al., [2015] A.R. Uned. 60; 253 A.C.W.S.(3d) 317; 2015 ABCA 132, refd to. [para. 269].

Bighorn No. 8 (Municipal District) v. Bow Valley Waste Management Commission (2015), 599 A.R. 395; 643 W.A.C. 395; 251 A.C.W.S.(3d) 508 (C.A.), refd to. [para. 269].

Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. et al. (2015), 599 A.R. 363; 643 W.A.C. 363; 386 D.L.R.(4th) 482; 2015 ABCA 121, refd to. [para. 269].

Van Camp v. Chrome Horse Motorcycle Inc. et al. (2015), 599 A.R. 201; 643 W.A.C. 201; 381 D.L.R.(4th) 721; 2015 ABCA 83, refd to. [para. 269].

Tien Lung Taekwon-Do Club et al. v. Lloyd's Underwriters (2015), 599 A.R. 39; 643 W.A.C. 39; 249 A.C.W.S.(3d) 194; 2015 ABCA 46, refd to. [para. 269].

Nafie v. Badawy (2015), 599 A.R. 1; 643 W.A.C. 1; 381 D.L.R.(4th) 208; 2015 ABCA 36, refd to. [para. 269].

911502 Alberta Ltd. v. Elephant Enterprises Inc. (2014), 588 A.R. 296; 626 W.A.C. 296; 2014 ABCA 437, refd to. [para. 269].

Equitable Trust Co. v. Lougheed Block Inc. et al. (2014), 588 A.R. 258; 626 W.A.C. 258; 2014 ABCA 427, refd to. [para. 269].

Munro (Bankrupt), Re (2014), 588 A.R. 211; 626 W.A.C. 211; 2014 ABCA 422, refd to. [para. 269].

Alberta Teachers' Association v. Buffalo Trail Public Schools Regional Division No. 29 (2014), 588 A.R. 179; 626 W.A.C. 179; 2014 ABCA 407, refd to. [para. 269].

Deagle v. 1678452 Alberta Ltd. (2014), 588 A.R. 129; 626 W.A.C. 129; 2014 ABCA 406, refd to. [para. 269].

AMT Finance Inc. v. Saujani et al., [2014] A.R. Uned. 402; 247 A.C.W.S.(3d) 94; 2014 ABCA 385, refd to. [para. 269].

Clarke v. Syncrude Canada Ltd. (2014), 584 A.R. 332; 623 W.A.C. 332; 2014 ABCA 362, refd to. [para. 269].

Access Mortgage Corp. (2004) Ltd. v. Arres Capital Inc. (2014), 584 A.R. 68; 623 W.A.C. 68; 2014 ABCA 280, refd to. [para. 269].

Modry et al. v. Alberta Health Services et al. (2015), 606 A.R. 373; 652 W.A.C. 373; 388 D.L.R.(4th) 352; 2015 ABCA 265, refd to. [para. 269].

Iona Contractors Ltd. v. Guarantee Company of North America (2015), 602 A.R. 295; 647 W.A.C. 295; 387 D.L.R.(4th) 67; 2015 ABCA 240, refd to. [para. 269].

Burch et al. v. Intact Insurance Co. (2015), 602 A.R. 182; 647 W.A.C. 182; 255 A.C.W.S.(3d) 725; 2015 ABCA 229, refd to. [para. 269].

HOOPP Realty Inc. v. Guarantee Co. of North America (2015), 607 A.R. 377; 653 W.A.C. 377; 2015 ABCA 336, refd to. [para. 269].

Gibbens v. Co-operators Life Insurance Co., [2009] 3 S.C.R. 605; 396 N.R. 165; 278 B.C.A.C. 283; 471 W.A.C. 283; 2009 SCC 59, refd to. [para. 283].

Bhasin v. Hrynew et al., [2014] 3 S.C.R. 494; 464 N.R. 254; 584 A.R. 6; 623 W.A.C. 6; 2014 SCC 71, refd to. [para. 313].

Fredrickson v. Insurance Corp. of British Columbia (1986), 28 D.L.R.(4th) 414; 3 B.C.L.R.(2d) 145 (C.A.), affd. [1988] 1 S.C.R. 1089; 86 N.R. 48, refd to. [para. 472].

Silverado Oilfield Ventures Ltd. v. Davidson et al. (2015), 600 A.R. 170; 645 W.A.C.170; 2015 ABCA 150, refd to. [para. 473].

Silverado Oilfield Ventures Ltd. v. Davidson et al. (2014), 587 A.R. 200; 2014 ABQB 218, refd to. [para. 475].

Counsel:

P.T. Linder, Q.C., and S.B.G. Matthews, for the appellants/cross-respondents;

D.R. Percy, Q.C., for the respondents;

A.D. Grosse and A.E. Teasdale, for the respondent, Esprit Exploration Ltd.;

R.C. Steele, for the respondent, Bonavista Energy Corporation;

R.F. Steele and P.G. Chiswell, for the respondents/cross-appellants, Nexen Inc. and ExxonMobil Canada Ltd.;

C.A. Crang, for the respondent/cross-appellant, Coastal Resources Limited;

M.D. Aasen (no appearance), for the respondent, TAQA North Ltd.

This appeal and cross-appeal were heard on September 11, 2014, before Rowbotham, McDonald and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On November 19, 2015, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Rowbotham, J.A. - see paragraphs 1 to 264;

McDonald, J.A. - see paragraphs 265 to 318;

O'Ferrall, J.A. - see paragraphs 319 to 482.