AER will appeal reclamation court ruling by The Canadian Press, May 27, 2016, Blackburn News
Alberta Energy Regulator to appeal ruling on oil and gas cleanup obligations by The Canadian Press, May 27, 2016, Global News
The Alberta Energy Regulator says it will appeal a court ruling that would allow oil and gas companies to avoid cleanup costs if they enter bankruptcy protection.
The court case centres on bankrupt Redwater Energy Corp., whose trustees want to sell off its remaining producing wells.
But the energy regulator wants to use those wells to cover cleanup expenses the company is responsible for.
The Alberta Court of Queen’s Bench said May 19 that provincial regulations are in conflict with the Bankruptcy and Insolvency Act and ruled in favour of creditors.
The energy regulator says it is appealing the decision because it could encourage more companies to enter receivership and bankruptcy to avoid obligations to clean up around oil and gas wells.
The lawsuit has been closely watched as a precedent-setting case as more bankruptcies loom in the oil and gas industry in the face of chronically low prices. [Or because of the oil and gas industry’s relentless greed, greed, pollution & abuse enabling AER and impossible to completely fix, very expensive big contaminating problem of leaking energy wellbores? Emphasis added]
New Rules for Asset Sales by Insolvent Producers (at least for now) by Caireen Hanert, Adam C. Maerov and Kourtney Rylands, May 27, 2016, McMillan LLP Canada
In Alberta, regulations have historically prohibited purchasers of oil and gas assets from cherry picking operating interests in economic properties while leaving behind interests in uneconomic wells. This has had a significant negative impact on the ability of a receiver or trustee to market and sell assets owned by insolvent companies and on the prices those assets are able to attract.
On May 19, 2016, the Honourable Chief Justice Wittman of the Alberta Court of Queen’s Bench released his reasons for judgment in the Redwater Energy Corp. (“Redwater”) matter. If it is not appealed or rendered moot by new legislation, the decision will fundamentally change the rules of the game.
On May 12, 2015, a Receiver was appointed over all of the assets and undertakings of Redwater, a publically listed junior oil and gas company with assets in Alberta. Like many of its peers, Redwater was partially a victim of low oil prices. The Redwater receivership is unique in that the Receiver (now also Trustee in bankruptcy) of Redwater challenged, on constitutional grounds, the application of the regulatory regime by the Alberta Energy Regulator (“AER”). In particular, the Receiver challenged the position taken by the AER that the Receiver was (i) required as “Licensee” to comply with provisions of the regulatory regime, and (ii) prohibited from transferring operating licenses in relation to economic wells without posting security for the abandonment liabilities for all of Redwater’s other wells.
The LLR Program
As discussed in our bulletin of January 25, 2016, Compromise with the Alberta Energy Regulator: Navigating a Receivership in Alberta’s Oil Patch, the AER is responsible for granting and administering licenses for oil and gas wells, pipelines, and related facilities in Alberta. As part of this mandate, the AER uses the Licensee Liability Rating (“LLR”) Program to assess a licensee’s ability to address the suspension, abandonment, remediation and reclamation activities at the end of the life-cycle of the particular asset. A major component of the LLR Program is the requirement for a licensee to post a security deposit if a licensee’s deemed liabilities for well abandonment (denominator) are greater than its deemed assets (numerator), a ratio known as the Liability Management Rating (“LMR”). The LMR is calculated on a monthly basis and, if it falls below 1.0 (i.e., deemed liabilities exceed deemed assets), the AER requires the payment of a security deposit by the licensee. This security deposit is used to secure a licensee’s obligation to abandon, remediate and reclaim oil and gas wells and facilities when such wells and facilities are no longer producing or economical.
Before it approves the transfer of a license, the AER requires that the transferor and transferee each have a post-transfer LMR of at least 1.0. Any party with an LMR of less than 1.0 will be required to post security. This can limit the pool of potential buyers, reduce the purchase price that the buyer is willing to pay and in cases where the seller has significant deemed liabilities (often the case with insolvent producers) can prevent the operating licenses/assets from being transferred at all.
In this constrained regulatory environment, an insolvent company attempting to sell its producing oil and gas assets is often required by the AER to post security and/or transfer all of its producing and non-producing wells as a package at a significant discount.
Redwater’s Uneconomic Wells
Faced with the above regulatory reality, a dwindling LMR, and a number of uneconomic wells, the Receiver of Redwater elected not to take possession of the uneconomic wells (the “Renounced Assets”), which represented a majority of Redwater’s AER licensed properties. The AER responded by issuing the Receiver closure and abandonment orders for all of the Renounced Assets, which, if followed, would have imposed a significant financial and regulatory liability on the estate of Redwater.
After the Receiver was appointed as Trustee of Redwater under the Bankruptcy and Insolvency Act (the “BIA”), the AER and the Orphan Well Association (“OWA”) filed an application in an effort to enforce the abandonment orders previously issued to the Receiver. The Trustee filed a cross application seeking court approval of a sales process which excluded the Renounced Assets.
Positions of the Parties
The applications were heard by the Chief Justice over two days in December of 2015. Submissions were made by each of the AER, the OWA, the Canadian Association of Petroleum Producers (“CAPP”), the Trustee, Alberta Treasury Branches (“ATB”), the Province of Alberta and the Canadian Association of Insolvency and Restructuring Professionals (“CAIRP”).
The AER argued that: (1) the Receiver was appointed as receiver and manager over all assets held by Redwater, and therefore should not be permitted to pick and choose assets to avoid its statutory obligations as a licensee; (2) the Trustee could not disclaim assets to avoid its custody and abandonment obligations as a licensee; and (3) the abandonment orders were regulatory in nature and therefore did not amount to a superpriority over the monies owed by Redwater to its secured lender, ATB. The AER’s position was supported by the OWA, CAPP and the Province of Alberta.
The Trustee argued that: (1) compliance with both the BIA and the provincial regulatory regime was not possible; (2) the provincial legislation frustrates the legislative purposes of the BIA; and (3) if the sales process was not approved in cases such as this, receivers would either refuse to take mandates or would request a discharge. The Trustee’s position was supported by ATB and CAIRP (with respect to the impact on receivers and trustees).
The Court found that, in this case, there was an operational conflict between the applicable provisions in the BIA and the provincial legislation and that dual compliance was not possible. Specifically, although the BIA permitted the Trustee to renounce some assets and not be responsible for abandonment and remediation work, the provincial legislation did not permit renunciation of assets by a licensee, which includes receivers and trustees.
The Court also found that the legislative purpose of specific provisions of the BIA were frustrated by certain provisions of the provincial legislation in a number of ways. Accordingly, the Court held that the doctrine of federal paramountcy applied to render inoperative those provisions in the provincial legislation which conflicted with the BIA.
This decision may be appealed or the provincial legislation may be amended. As a result, the implications of the decisions are not clear. It is possible that there will be a rush to put companies into receivership or bankruptcy, or that there will be a significant number of wells and facilities being renounced. Alternatively, caution may continue to delay these activities until a decision on an appeal is made.
If the decision stands and the legislation is not amended, there will almost undoubtedly be a significant change in the way that receiverships and bankruptcies of oil and gas companies proceed in Alberta.
Trustees and receivers will be permitted to renounce wells and facilities under the BIA, and will no longer be considered licensees under the provincial legislation with respect to those renounced assets.
Abandonment orders issued by the AER will not bind receivers or trustees, and receivers and trustees will not be required to assume liabilities, in relation to renounced assets.
The AER may not block sales of assets of insolvent companies by requiring payment of security deposits or other conditions precedent to approving the transfer of licenses to the purchaser. This should result in increased recoveries for creditors by eliminating this substantial cost and delay. Receivers and purchasers will no longer be forced to negotiate with the AER to ensure that the purchaser is not required to post security for assets it cannot operate because of the AER’s refusal to transfer the applicable licenses.
The AER will not be entitled to include renounced assets when calculating a purchaser’s LMR for the purpose of determining whether or not it will approve a transfer of licenses.
These changes will provide certainty to lenders as to their priority over their security.
… Without security deposits from insolvent companies or receivers and trustees, one source of funds to handle the remediation of these wells has been eliminated, leaving the industry as a whole with larger costs to support the orphan well system. [Ultimately, dumped on the shoulders of ordinary Albertans] On the other hand, the ability of receivers and trustee to package assets for sale in the way they see fit will in some cases facilitate transactions (and the posting of security deposits) that in the past would not have been possible under the old rules. [Emphasis added]
Canada: Implications Of The Redwater Decision – Where Does The Buck Stop? by Janice D Buckingham, Melissa Gaston and Emily Paplawski, May 26, 2016, Osler, Hoskin & Harcourt LLP
… The decision has far-reaching implications for an industry that has been hammered by low commodity prices, devastating wildfires, and now the prospect of increased levies to fund the efforts of the Orphan Well Association (OWA) to assume the obligations of bankrupt participants. For the boards of directors who serve companies with operations in the oil patch, the AER has also made it clear that it has extensive statutory rights. [Look out directors! In Ernst vs AER, Justice Wittmann ruled AER completely legally immune, even for Charter violations, gross negligence and acts in bad faith!]
Chief Justice Wittmann first considered the doctrine of federal paramountcy. He reviewed the two branches of the paramountcy test established by the Supreme Court of Canada, namely: (a) whether it is possible to apply the provincial law while complying with the federal law; and (b) whether the provincial legislation is incompatible with or frustrates the purpose of the federal legislation.
Under the first branch of the paramountcy test, the Chief Justice reviewed section 14.06(4) of the BIA which permits a Trustee to renounce assets and not be responsible for environmental abandonment and remediation work. He also reviewed numerous provisions of the OGCA and the PA which expressly include a Trustee as a “licensee.” Neither provides any means for “licensees” to renounce licensed assets. Accordingly, as the BIA permits the Trustee to renounce and not be liable for the costs of abandonment, remediation and reclamation, while the OGCA and the PA continue to hold a Trustee liable for such obligations, the Chief Justice held that dual compliance under the OGCA, the PA and the federal insolvency regime under section 14.06(4) is not possible.
He then looked at the second branch of the federal paramountcy test, holding that the fundamental purposes of section 14.06 of the BIA are to: (a) limit the liability of insolvency professionals so that they will accept mandates despite environmental issues; (b) permit a Trustee to make rational economic assessments of the costs of remedying environmental conditions; and (c) equitably distribute the assets of the debtor.
In determining the purpose of the abandonment orders issued under the OGCA and the PA, the Chief Justice reviewed the decision of the Supreme Court of Canada in AbitibiBowater 4 and cases that followed. He found that based on the principles defined in that case, the abandonment orders constituted provable claims within the meaning of the BIA and were therefore subject to federal insolvency legislation.
As a result, the provisions of the OGCA and the PA were held to be inoperative to the extent such provisions conflict with federal legislation requiring a Trustee to comply with or provide security in respect of abandonment orders regarding renounced licensed assets.
The Chief Justice also held that the purpose of section 14.06 of the BIA was frustrated by the AER’s requirements to pay security deposits and perform abandonment orders as conditions of its approval of applications to transfer Redwater’s AER licences as this required the Trustee to: (a) address those conditions prior to the payment of fees and disbursements or any secured or unsecured creditors; and (b) pay or rectify those conditions as costs of administration regardless of the fact that the conditions relate to renounced assets.
As a result of the Court’s decision, a Trustee in Alberta is permitted to renounce assets pursuant to the terms of the BIA, will not be considered a licensee under the provincial regulatory regime in relation to renounced assets, will not be required to assume any liabilities and will not be bound by any abandonment orders issued by the AER relating to renounced assets in seeking approval of the sales process to market and sell assets remaining under its possession and control.
Similarly, the AER will not be permitted to consider renounced assets in calculating the LMR of a company when approving or refusing to approve a transfer of licences to a purchaser within a bankruptcy or receivership under Directive 006.
The implications of this decision for the Alberta oil and gas industry are far-reaching. On the one hand, the Court’s decision provides certainty to secured lenders that priority is maintained over their security (subject to costs of administration and other super priorities under the BIA). This certainty should result in continued access by the oil and gas industry to readily available credit. [To enable more polluting and health harm to citizens and dumping the massive costs of clean-up and abandonment onto those poisoned citizens? (AER’s Orphan Well Program is a joke with scant few dollars paid into it by companies compared to the devastation and pollution by those companies across the province.)]
On the other hand, it could result in a dramatic increase in the number of wells renounced by Trustees and determined to be “orphaned” by the AER, which will undoubtedly increase pressure on industry to fund the completion of work to abandon, reclaim and remediate such wells, and on the boards of directors who serve companies in the industry.
For directors and officers of bankrupt companies, the decision could potentially restrict their ability to act in the capacity of director or officer for oil and gas companies in the future. Pursuant to section 106 of the OGCA, the AER is permitted to make a declaration setting out the names of one or more directors or officers (among others) of a licensee that has outstanding debts to the OWA in respect of suspension, abandonment or reclamation obligations. Such a declaration permits the AER to: (a) refuse to consider an application for a licence or approval from an applicant under the OGCA or the PA; (b) refuse to consider an application to transfer a licence or approval under the OGCA or the PA; (c) require the submission of abandonment and reclamation deposits in an amount determined by the AER prior to granting any licence approval or transfer to an applicant; or (d) require the submission of abandonment and reclamation deposits in an amount determined by the AER from any wells or facilities of any licensee or approval holder. The remedies in section 106 follow the director or officer beyond the termination of his or her employment with the licensee. Further, depending on the nature of the renounced environmental obligations, directors and officers of non-compliant companies could also potentially be held personally liable and subject to fines, imprisonment or both under sections 228 and 232 of Alberta’s Environmental Protection and Enhancement Act. 5 [Would the regulators take such action after letting Encana illegally frac a community’s drinking water aquifers, and endless other such abuses across Alberta?]
… If the OWA is unable to increase its funding for abandonment, reclamation and remediation of orphan wells, such wells could become the responsibility of the Alberta public if the provincial and/or federal governments are required to assume a greater share of the obligations associated with a Trustee’s renouncement of licensed assets. The public policy debate around who should bear the environmental remediation costs of insolvent debtors has positioned banks and accounting firms opposite the oil and gas industry, and while this match was decided in favour of the banks as secured creditors and accounting firms as trustees, it may be premature to call the matter concluded.
The Court acknowledged that the public interest is at stake if a licensee does not fulfill its environmental duties and that the financial and environmental repercussions of a licensee’s failure to do so are very real. The Chief Justice recognized that “this case raises several issues of importance to the energy industry, the financial industry and the Alberta public, in terms of the potential environmental and financial repercussions when abandoned wells or a bankrupt energy company are renounced by a trustee or receiver in bankruptcy.”
However, the Court held that Parliament balanced a number of competing considerations in enacting section 14.06 of the BIA and that it would require a reassessment by Parliament to effect a different result. This reassessment is in Parliament’s jurisdiction to determine – not the Court’s.
Only time will tell whether Parliament chooses to respond to the decision and whether an appeal will be forthcoming. Undoubtedly the complex social, financial and environmental issues raised in this case, including the public policy debate about where the buck should stop between the energy industry and Canadian banking institutions given the underlying purposes of the Canadian bankruptcy framework, demand a broad and thoughtful analysis by Parliament, the Legislature, the banking industry, and the oil and gas industry in Alberta. [Emphasis added]
1 Oil and Gas Conservation Act, RSA 2000 c. O-6.
2 Pipeline Act, RSA 2000, c. P-15.
3 Bankruptcy and Insolvency Act, RSC 1985 c. B-3.
4 Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67.
5 Environmental Protection and Enhancement Act, RSA 2000, c. E-12.
Environment, future of companies take back seat to creditors in oil well case by Jennifer Brown, May 24, 2016
It’s being viewed as a win for the banks but a loss for insolvent oil companies and the environment.
Alberta Court of Queen’s Bench Chief Justice Neil Wittmann ruled last week in favour of insolvent Redwater Energy and against requirements around dealing with non-performing oil wells in an insolvency situation.
In the May 17 decision, Wittmann decided in favour of Grant Thornton Ltd., the bankruptcy trustee in the Redwater Energy Corp.’s receivership and bankruptcy proceedings, upholding its right to “disclaim” Redwater’s non-producing oil wells and sell its producing wells.
Redwater was a junior oil and gas producer that went into insolvency in the spring of 2015. It owed its bank, ATP Financial, about $5 million.
Upon appointment, the receiver conducted an assessment of Redwater’s assets and advised the Alberta Energy Regulator that of the 91 wells to which Redwater held licences, it would only be taking possession of 20 wells, facilities, and associated pipelines.
It was a case being watched closely by those in the oil sector — especially the banks.
At issue was whether the provincial regulatory regime under the Oil and Gas Conservation Act and the Pipeline Act conflicted operationally with the federal Bankruptcy and Insolvency Act.
… The decision dismissed the application of the AER and Orphan Well Association, which argued Grant Thornton should have to carry out the abandonment, reclamation, and remediation obligations of Redwater’s non-producing wells, or perform abandonment orders as issued by the AER, which included paying a security deposit.
The implications of this decision for the Alberta oil and gas industry are far-reaching, says Melanie Gaston, a partner with Osler Hoskin & Harcourt LLP in Calgary.
“Typically a receiver takes the less profitable wells or those that require decommissioning and sells them as packages. Now, with this decision, it’s clear that doesn’t need to happen. They can go in and pick the good, producing wells and leave the non-profitable ones,” says Gaston. “If I’m an oil company and I’m restructuring what I’m left with post-restructuring is not necessarily all that helpful.”
The question now becomes how to fund dealing with the non-producing wells of companies in an insolvency position. The court’s decision may lead to a dramatic increase in the number of wells determined to be “orphaned” by the AER. This will undoubtedly increase pressure on industry to fund the completion of work to abandon and remediate such wells, and on the boards of directors who serve companies in the industry.
“With these decisions the regulator is in a tough position because it will now be burdened with, potentially, exponentially more wells to manage with the Orphan Well Fund,” says Gaston.
If the legislation remains the same, the regulator will be left to find other sources of funding to manage it — possibly an increased levy on the oil companies already hurt by low prices and the fires in Fort McMurray,
or approaching the government for an injection of funds from the taxpayers — just another hit for Albertans.
… It is expected an appeal will be launched. [Emphasis added]
ALBERTA’S OIL AND GAS LICENSING REGIME FOUND TO BE UNCONSTITUTIONAL by Kelly Bourassa, Ryan Zahara and Chris Nyberg (Student-at-Law), May 20, 2016, Blake, Cassels & Graydon LLP (Blakes)
In Redwater Energy Corporation (Re) (Redwater Energy), the Court of Queen’s Bench of Alberta (Court) held that certain sections of the Oil and Gas Conservation Act (OGCA) and Pipeline Act (PA) are inoperative to the extent that they are used by the Alberta Energy Regulator (AER) to prevent the abandonment or renunciation of an insolvent debtor’s assets by a court-appointed receiver or trustee.
Redwater Energy Corporation (Redwater) was a publicly listed oil and gas corporation that held approximately 130 properties licensed under the OGCA and the PA. In May 2015, after Redwater’s inability to consummate an out-of-court sale of its assets in order to repay its lender in full, Grant Thornton Limited (GTL) was appointed receiver (Receiver) over the assets of Redwater pursuant to section 243 of the Bankruptcy and Insolvency Act (BIA). In October 2015, Romaine J. granted an order assigning Redwater into bankruptcy and GTL was named trustee of Redwater’s estate (Receiver/Trustee).
Two applications were filed during the course of the proceedings:
First, the AER and the Orphan Well Association (OWA) filed a joint application seeking:
- To prevent the Receiver/Trustee from renouncing certain AER licensed assets of Redwater (Renounced Assets)
- Declaring the Receiver/Trustee the licensee in respect of the Renounced Assets
- Forcing the Receiver/Trustee to comply with a number of abandonment and closure orders (Abandonment Orders) in respect of the Renounced Assets
Second, the Receiver/Trustee brought a cross-application seeking the approval of a sales process that excluded the Renounced Assets and seeking a determination of the constitutionality of AER’s licensing regime under the OGCA, the PA and Directive 006: Licensee Liability Rating (LLR) Program and Licence Transfer Process to the extent that it (i) prevents the Receiver/Trustee from abandoning the Renounced Assets, and (ii) imposes an obligation on the Receiver/Trustee to expend funds to comply with the Abandonment Orders as a condition precedent to the AER approving a transfer of Redwater’s AER licences.
Chief Justice N. Wittmann, in his written decision, dismissed the AER’s application and granted GTL’s application to commence a sales process to dispose of Redwater’s assets. The sales process proposed by the Receiver is expected to proceed on the basis that the AER will be directed to transfer any licences associated with the assets sold by the Receiver without including the Renounced Assets in the calculation of Redwater’s post-transfer Liability Management Rating.
Regarding the constitutionality of the Receiver/Trustee’s ability to abandon the Renounced Assets, the Court recognized that a plain reading of section 14.06 of the BIA indicates that its purpose is to permit receivers and trustees to make “rational economic assessments of the costs of remedying environmental conditions” and provides them with the discretion to determine whether to comply with regulatory orders or renounce the property subject to those orders.
The Receiver/Trustee is entitled to disclaim assets under the BIA but there is no corresponding mechanism for it to disclaim assets under the provincial legislation. Where the Receiver/Trustee disclaimed all interest in the Renounced Assets under the BIA, the liability imposed by provincial legislation remained. Therefore, the Court held that dual compliance with the OGCA, the PA and section 14.06 of the BIA was not possible and that an operational conflict existed between the provincial and federal legislation.
Moreover, the provisions of the OGCA and the PA, which deemed the Receiver/Trustee to be a licensee, were declared inoperative to the extent they conflicted with the BIA. The Receiver/Trustee was expressly held not be the licensee of the Renounced Assets and was found not to have assumed any liability in respect of the Renounced Assets. Section 14.06(4) of the BIA expressly allows the Receiver/Trustee to disclaim the Renounced Assets and, as long as the statutory requirements of that section are met, the AER is unable to require the Receiver/Trustee to abandon, reclaim or remediate the Renounced Assets on the basis that it is a licensee.
Compliance with the Abandonment Orders would have required the Receiver/Trustee to expend estate funds on orders that were in substance monetary claims. The result of the Receiver/Trustee’s compliance with the Abandonment Orders would have seen the AER’s unsecured claims paid out from the assets of the estate prior to the claims of Redwater’s other creditors. Thus, the usual order of priority in bankruptcy would have been rearranged to the detriment of other creditors and the AER’s application would have seen a “third-party-pay” principle substituted for the “polluter-pay” principle recognized by the Supreme Court of Canada in Newfoundland and Labrador v. AbitibiBowater Inc.
In this regard, Chief Justice Wittmann found that the AER was not a public enforcer taking steps to enforce the general law, but was instead an “enforcing authority clothed as a creditor”.
It is clear from the wording of section 14.06 of the BIA that parliament balanced a number of competing considerations when adopting the provision. Chief Justice Wittmann affirmed that the Court’s role is limited to interpreting and applying the existing legislation and held that the purpose of sections 14.06(4) and (6) of the BIA was frustrated by the AER’s requirement that the Receiver/Trustee pay or rectify the environmental conditions as costs of administration regardless of whether the Renounced Assets had been properly abandoned. Additionally, the payment of a security deposit or performance of the Abandonment Order obligations was held to frustrate the legislative purpose of sections 14.06(5), (6), (7) and (8) of the BIA, where payment or compliance was a condition precedent to the AER’s approval of a licence transfer application by the Receiver/Trustee.
The Redwater Energy decision clarifies the existing law with respect to protection of receivers and trustees, the ability of the receiver or trustee to sell and disclaim licensed assets and the rights and priority of creditors where the AER is actively involved in a distressed sale process. The decision has also affirmed that the principles set out in PanAmericana de Bienes y Servicios v. Northern Badger Oil & Gas Limited may no longer be applicable to the extent that they purport to deal with priorities in relation to the payment of environmental remediation costs in insolvency proceedings. It appears that this area is now exclusively occupied by sections 14.06(6), (7) and (8) of the BIA, which establish the rank of environmental claims in receivership and bankruptcy proceedings. [Bottom of the list?]
Blakes acted for Alberta Treasury Branches, Redwater’s principal secured lender, in this matter.
Please also see our May 2016 Blakes Bulletin: AER Seeks to Hold Directors, Officers Personally Liable for Obligations of Insolvent Corporate Licensees …
[Refer also to:
2016 05 21: Alberta Court of Queen’s Bench Chief Justice Wittmann rules for creditors instead of clean-up when energy companies go bankrupt, Rules against Albertans, water, land and air
2016 05: Canadians own a fracking company
The Canada Pension Plan, our pension plan, spent $900 million of our money to bail out the struggling Canadian oil company Encana by buying its Colorado fracking operation.
2013 09 19: Justice Wittmann’s September 2013 ruling in Ernst vs AER (Not appealed by AER, included in Ernst’s filings with the Supreme Court of Canada, hearing heard there on January 12, 2016, ruling not yet released):
… V. Overall Conclusion
… b. The Charter claim of Ernst against the ERCB is valid, subject to the application of the Limitations Act and section 43 of the ERCA.
[In Redwater, Justice Wittmann ruled federal law trumps provincial law; in Ernst vs AER, he ruled provincial law trumps the Charter which is Canada’s supreme law trumping provincial and federal laws.]
But, not against the AER:
The Charter is Canada’s Constitution.
Does Justice Wittmann mean that when it comes to the AER, Alberta citizens can’t wear their Charter clothes to defend their constitutional rights when violated by the AER, but banks can?
Slides from Ernst presentations