The Applicant sought to set aside six Notices of Default under land agreements (the “Notices”) that were served on it by the Respondents. The Respondents cross-applied for partial Summary Judgment for the assignment of 114 agreements, as the Respondents argued that the assignments did not require consent or fell under an exemption to any requirement for consent, relying on Rule 7.3(1). The Applicant argued the Respondents had waived their right to rely on exemptions to consent because of their conduct.

The Applicant argued that the Notices should be set aside because it was not the operator at the time the Notices were issued. The Court agreed.

The Respondents then argued that the Court must apply the three-part test established in Hryniak v Mauldin, 2014 SCC 7, prior to considering the Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 criteria for partial Summary Judgment. The Court disagreed, stating that analysis for partial Summary Judgment is part of the Weir-Jones analysis and quoted the applicable test. In the context for an Application for partial Summary Judgment, the Court cited JBRO Holdings Inc. v Dynasty Power Inc., 2022 ABCA 140, and held that under Rule 7.3(1), a Party may apply for Summary Judgment in respect of all or part of a claim.

The Applicant argued that partial Summary Judgment was not appropriate, as the issues were neither simple nor straightforward, and the outcome would have a substantial impact on the oil and gas industry. As such, the issues warranted careful consideration at Trial, based on a full evidentiary record. The Court found this reasoning to be contrary to Rules 1.2 and 7.3(1).

The Court held the case was well suited for partial Summary Judgment for the following reasons: (1) the case was, at its heart, a contractual dispute, and contractual disputes are well-suited for Summary Judgment; (2) the risk of inconsistent results is further minimized because the issues of damages and set-off claimed in both the Statement of Claim and Counterclaim under all the agreements had been reserved for Trial; (3) the Application had the ability to significantly streamline and simplify the Trial; (4) the relevant issues could be easily bifurcated from the remainder of the issues; (5) the Applicant offered little explanation in terms of additional evidence that could be adduced at Trial; (6) there were no credibility concerns or complex expert opinions; (7) partial Summary Judgment would have a fair result, having regards to the state of the record and the issues.

The assignability of the 114 agreements was easily bifurcated from the main Action and could be dealt with expeditiously and in a cost-effective manner, making the case exactly the type of proceedings where partial Summary Judgment was appropriate.

The Court also found that the Respondents had not waived their contractual rights because waiver requires full knowledge of the rights and an unequivocal and conscious intention to abandon them, and there was no evidence to support that the Respondents had intended to abandon their rights. Moreover, the Applicant had not pled waiver or estoppel as is required under Rules 13.6(3)(c) and (m).

For the reasons set out above, the Court set aside the Notices, found waiver had not been established, and granted the cross-Application for partial Summary Judgment in respect of the agreements that were found to be exempt from consent.