3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiffs filed a claim against the governments of Alberta and Canada for the expropriation of its royalty interest in a coal mining facility. This expropriation was alleged to occur by the passing of the Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations, SOR/2018-263, which had collateral effects on coal producers, including the Plaintiffs. Specifically, instead of generating royalty interests to 2055, the Plaintiffs alleged that they would receive no royalty interests after 2030 due to the governments’ actions.

The Defendant governments filed Applications to strike the claim pursuant to Rule 3.68 or for Summary Judgment pursuant 7.3. Master Farrington did not consider the Application pursuant to Rule 3.68, finding that it would be inappropriate to do so on the volume of evidence before the Court and the fact specific nature of the claim.

With respect to Rule 7.3, the Defendants first argued that the Action was premature, as there could be changes to the regulatory environment many times between now and 2030. Master Farrington found that the declaratory remedy sought was not premature and was capable of adjudication on existing facts. As stated by Master Farrington, “parties who are affected by the regulation who feel aggrieved are entitled to an answer now as to whether the regulation amounts to a "taking" or not.”

The Defendants next argued that the facts did not support a finding of “taking” or expropriation. Master Farrington reviewed the case law on constructive expropriation and noted that such cases were “very fact specific.” On a review of the facts before him, Master Farrington found that ownership of land or resources did not carry with it any exemptions from land use regulations, and that such regulations could be expected in Canada. On that basis, Master Farrington found that the Plaintiffs had no legal cause of action, granted the Application for Summary Judgment, and the Action was summarily dismissed against both governments.

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