Imperial Oil v Flatiron Constructors, 2016 ABQB 310

Court of Queen ’ s Bench of Alberta Citation: Imperial Oil v Flatiron Constructors, 2016 ABQB 310 Date: 20160603 Docket: 1403 04451, 1403 04457 Registry: Edmonton Docket No. 1403 04451 Between: Imperial Oil Plaintiff - and - Flatiron Constructors Canada Limited Respondent (Defendant) - and - AltaLink Management Ltd. Applicant (Third Party Defendant) - and - ABC Corporation #1, Epcor Distribution & Transmission Inc. and ABC Corporation #2 Third Party Defendants - and - Docket No. 1403 04457 Between: Suncor Energy Products Partnership Plaintiff - and - Flatiron Constructors Canada Limited Respondent (Defendant) - and -

AltaLink Management Ltd. Applicant (Third Party Defendant) - and - ABC Corporation #1, Epcor Distribution & Transmission Inc. and ABC Corporation #2 Third Party Defendants Corrected judgment: A corrigendum was issued on June 9, 2016; the correction has been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an application by the Plaintiffs Suncor Energy Products Partnership and Imperial Oil to dismiss the Third Party AltaLink Management Ltd.’s applications for

summary trial of the third party claims against it by the Defendant Flatiron Constructors Canada Limited. Background [ 2 ] Suncor and Imperial Oil each sued Flatiron in separate actions arising out of losses they allege resulted when power was interrupted to their respective oil refineries near Edmonton, Alberta. Power was interrupted after a truck owned and operated by Flatiron struck a power line near the Plaintiffs’ refineries. [ 3 ] The claims against Flatiron are in tort, as Flatiron was not performing work for either Suncor or Imperial Oil at the time. Flatiron is the only defendant in the lawsuits brought by the Plaintiffs. [ 4 ] The prayer for relief in the Suncor action seeks: (

a) damages in the amount of at least $17,410,388.31, or such further and other amount as may be proven at trial; (

b) interest pursuant to the Alberta Judgment Interest Act, RSA 2000, c J-1, and all amendments thereto and regulations prescribed thereunder; (

c) costs of this action; and (

d) such further and other relief as counsel may advise and this Honourable Court may deem fit. [ 5 ] The prayer for relief in the Imperial Oil action seeks: (

a) damages in the amount of at least $9,554,800, or such further and other amount as may be proven at trial; (

b) interest pursuant to the Alberta Judgment Interest Act , RSA 2000, c J-1, and all amendments thereto and regulations prescribed thereunder; (

c) costs of this action; and (

d) such further and other relief as counsel for [sic] may advise and this Honourable Court may deem fit. [ 6 ] Particulars of the damage claims are given in para 16 of Suncor’s Statement of Claim and para 17 of Imperial Oil’s Statement of Claim:

16. Suncor claims damages from Flatiron of $17,410,388.31, particularized as follows: (i) $185,774.00 for flared-off inventory; (ii) $236,134.10 for the purchase of nitrogen and natural gas utilities; (iii) $601,480.21 for repair and maintenance costs; (iv) $2,340,000.00 for the forced sale of unprocessed feedstock; (v) $1,270,000.00 for the forced third party storage of feedstock; (vi) $277,000.00 for additional transportation costs; and (vii) $12,500,000.00 for lost profits. 17.

Imperial claims damages from Flatiron of $9,554,800.00, particularized as follows: (i) $58,500.00 for flared-off inventory; (ii) $72,100.00 for the purchase and transport of additional catalyst and chemicals; (iii) $52,700.00 for the purchase of additional energy and utilities; (iv) $1,129,500.00 for shutdown and start-up costs; (v) $500,000.00 for the forced sale of unprocessed feedstock; and (vi) $7,742,000.00 for lost profits. [ 7 ] Flatiron issued third party notices against AltaLink, amongst other third parties, seeking contribution and indemnity against the Plaintiffs’ claims. [ 8 ] AltaLink’s

summary trial applications were brought against the Defendant Flatiron Constructors Canada Limited, who had brought AltaLink into the lawsuits alleging that various acts of negligence on the part of AltaLink caused or contributed to the Plaintiffs’ losses. [ 9 ] AltaLink defended the Third Party Notices denying liability, and also pursuant to the provisions of the Electric Utilities Act , RSA 2000, c E-5 (the “EUA”). In particular, section 90(4) of the EUA provides:

(4) Where, as a result of the operation of subsection (3), an Independent System Operator person is liable to another person for an Independent System Operator act, the Independent System Operator person is liable only for direct loss or damage suffered or incurred by that other person. [ 10 ] “Independent System Operator act” is defined in s 90(1)(b): (b) “Independent System Operator act” means any act or omission carried out or purportedly carried out by an Independent System Operator person in exercising its powers and carrying out its duties, responsibilities and functions under this Act and the regulations; ... [ 11 ] “Direct loss or damage” is dealt with in s 90(1)(a): (a) “direct loss or damage” does not include loss of profits, loss of revenue, loss of production, loss of earnings, loss of contract or any other indirect, special or consequential loss or damage whatsoever arising out of or in any way connected with an Independent System Operator act; ... [ 12 ] AltaLink argues that all of the Plaintiffs’ claims against Flatiron, and thus Flatiron’s claims against AltaLink, are for losses other than “direct loss or damage”. [ 13 ] On June 15, 2015, AltaLink filed an application for

summary trial on the following issues: 1. The Applicant (Third Party Defendant), AltaLink Management Ltd. (“AltaLink”), submits the following issues to be determined: (

a) Does AltaLink have statutory immunity from the damages claimed in the Third Party Claim filed by the Respondent (Defendant), FlatIron Constructors Canada Limited (“FlatIron”), by virtue of the protection provided by the Electric Utilities Act , S.A. 2003, c. E-5.1 (the “ Act ’) and its Regulations, particularly: (

i) Is AltaLink an “Independent System Operator person” for the purposes of the Act and its Regulations? (ii) Are the acts that are the subject of the allegations made by FlatIron in the Third Party Claim “Independent System Operator acts” for the purposes of the Act and its Regulations?

(iii) Are the damages claimed by FlatIron in the Third Party Claim “direct loss or damage” as defined in the Act and its Regulations? [14] On February 11, 2016, two consent orders were granted (coincidentally by me, sitting in regular chambers) directing that theissue of the suitability of

summary trial be determined in special chambers, reciting that the Plaintiffs object to the proposed

summarytrial. [15] The Plaintiffs have advanced a number of arguments to attempt to demonstrate that the losses they claim against Flatiron areunrecoverable economic loss. [16] The essence of their objection to the

summary trial proposed by AltaLink is the potential of prejudice to the Plaintiffs by whatthey describe as a “premature determination on issues that are key to the Plaintiffs’ claims against Flatiron – namely the categorizationand recoverability of the Plaintiffs’ damages.” [17] The Plaintiffs oppose the

summary trial process on three bases: 1) The Plaintiffs have standing to object to the

summary trial application; 2) The issues raised by AltaLink are inappropriate to be dealt with by way of a

summary trial; and 3) A

summary trial on the issues proposed will not facilitate resolution of the Actions. [18] AltaLink objects to the Plaintiffs’ interference in its

summary trial application against Flatiron. Flatiron takes no position onthis application. Positions of the Parties [19] The Plaintiffs argue that

summary trial of the issue between Flatiron and AltaLink is not appropriate in the circumstances ofthis case. They cite Enerflow Industries Inc. v Surefire Industries Inc, 2013 ABQB 196, Chevron Canada Resources v Canada(Executive Director of Indian Oil and Gas), 2001 ABQB 544 and Islam v Mozumder, 2012 ABQB 773. [20] From those cases, the Plaintiffs submit that in order to determine the appropriateness of

summary trial for an issue or issues,the Court must look at the considerations listed in Enerflow at para 26: [26] The next question is whether this matter is appropriate for

summary trial at all.

In Duff v Oshust, 2005 ABQB 117 , 381AR 386 at para. 24, this Court enumerated a list of factors to be used in making this assessment: 1. the amount involved; 2. the complexity of the matter; 3. its urgency; 4. any prejudice likely to arise by reason of delay; 5. the cost of taking the case forward to a conventional trial in relation to the amount involved; 6. the course of proceedings; 7. whether all witnesses or only some were (will be) cross-examined in court; 8. whether there is a real possibility that the defendant can bolster its evidence by discovery of the plaintiff’s documents and witnesses;and 9. whether the resolution will depend on findings of credibility. [21] In Islam v Mozumder, Veit J stated at paras 13-14: [13] Next, the parties obtained an order relieving them of the obligation to engage in some type of pre-trial dispute resolution process;again, the reference to a trial in this order does not explicitly state that the trial will be a

summary trial. Indeed, if the parties were reallyexpecting to have a

summary trial, an order relieving them of the obligation to have a JDR would be unnecessary since that pre-trial stepis not required for a

summary trial: see Form 36. [14] Finally, on October 25, 2012, using Form 36, the plaintiff applied for a

summary trial. Under the procedure instituted by Rule 7.5,the civil trial coordinator set Monday, December 10, 2012 as the date on which a one day

summary trial would be held. Complying withRule 7.8, 5 days or more before the scheduled

summary trial date, specifically on December 5, 2012, Mr. Mozumder filed a notice ofobjection to a

summary trial. [22] The Plaintiffs focus on what they say is the inappropriateness of

summary trial proceedings in this complex matter, and onpotential prejudice to them. [23] They also cite Inland Concrete Limited v Commonwealth Insurance Company, 2008 ABQB 297, arguing that this case toorequires an evidentiary base for a proper determination of the issues sought to be tried by way of

summary trial. [24] As the lawsuit as a whole may turn on damage characterization and recovery issues, the Plaintiffs cite Rivtow Marine v

Washington Iron Works, (SCC), [1974] SCR 1189, Seaway Hotels Ltd. v Consumer’s Gas Co, (ONSC), [1959] O.R. 177, Young v British Columbia, 2016 BCCA 25, Russell Brown, Pure Economic Loss in Canadian Negligence Law(Markham: NexisLexis; 2011) at p 59, Canadian Tort Law (10th Ed), Linden & Feldthusen (Markham: NexisLexis) at para 12, and Klaret al, Remedies in Tort (Toronto: Carswell; looseleaf) at 16.1-160.3. [25] The specific areas of prejudice argued by the Plaintiffs are that: a. Damage issues relevant to the Plaintiffs’ claims against Flatiron may be decided in the

summary trial proceedings between Flatironand AltaLink, and they will not be participants in that proceedings; and b. The eventual trial judge may be influenced by the decision in the

summary trial proceeding, even if it is not specifically binding onhim or her. [26] Essentially, the Plaintiffs argue that a

summary trial between Flatiron and AltaLink will risk affecting the Plaintiffs’ legalrights and potentially pre-empting a trial judge. Analysis Status [27] I do not see any valid objection to the Plaintiffs’ status to make this application. They are parties to the action, and while theyhave no claim against AltaLink, they have a legitimate interest in ensuring that court processes in the actions they commenced aretransparent. [28] Rule 6.3 requires notices of application to be filed and served on “all parties”. That is the case even if the application willhave no potential to affect a party against whom no relief is sought on the application itself. [29] The

summary trial (if it proceeds) would require notice to the Plaintiffs. It would be extremely rare for parties to an action toconduct court proceedings secret from other parties. [30] It is clearly preferable for the Plaintiffs to bring this application in the fashion they have, instead of waiting for the actualsummary trial itself and showing up then to object. Their objections are based on their concerns about potential prejudice or adverseeffect on them that may result from the

summary trial. [31] I do agree with AltaLink’s submission that the Plaintiffs have no standing to argue that

summary trial of an issue betweenAltaLink and Flatiron is unsuitable for reasons other than potential prejudice to them. Suitability [32] Flatiron takes no issue with the suitability of

summary trial to resolve the damage issue as between it and AltaLink. If Flatironand AltaLink consider that

summary trial is an appropriate process, I do not see that the Plaintiffs have status to object unless they canestablish that they may be prejudiced by the outcome of the

summary trial. I will accordingly not deal specifically with the Plaintiffs’objections to suitability in this

section of my decision. Prejudice [33] AltaLink cites Wire Rope Industries of Canada

(1966) Ltd v BC Marine Shipbuilders Ltd et al, (SCC),[1981] 1 SCR 363 as authority that third party proceedings are “substantive, independent actions that stand on their own” (at p 12). [34] It argues that any decision in the claim by Flatiron against it will be binding only on it and Flatiron, citing principles of resjudicata and 420093 BC Ltd v Bank of Montreal, (AB CA), [1995] AJ No 862 (CA). [35] In 420093 BC Ltd, the Court of Appeal held at para 18: [18] A prior judicial decision will not raise an estoppel by res judicata, either issue estoppel or cause of action estoppel, unless (

i) it wasa final decision pronounced by a court of competent jurisdiction over the parties and the subject matter, (ii) the decision was, orinvolved, a determination of the same issue or cause of action as that sought to be controverted or advanced in the present litigation; and(iii) the parties to the prior judicial proceeding or their privies are the same persons as the parties to the present action or their privies. [36] Issue estoppel was dealt with in paras 29 - 30: [29] The three essential conditions for issue estoppel were expressed as follows by Lord Guest in Carl Zeiss Stiftung v.

Rayner andKeller Ltd. (No. 2), [1967] 1 A.C. 853, [1960] 2 All E.R. 536 at pp. (A.C.) 935, (All E.R.) 565: “The requirements of issue estoppel still remain (

i) that the same question has been decided, (ii) that the judicial decision which is said tocreate the estoppel was final, and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to theproceedings in which the estoppel is raised or their privies. [37] This passage was adopted by Dickson, J. (as he then was) in Angle v. Minister of National Revenue, (SCC),[1975] 2 S.C.R. 248, at 254.

[30] Not only must the issue in the earlier action be the same as those raised in the current proceedings, the question decided in the firstaction roust have been fundamental to the decision and not merely collateral or incidental to it. Dickson, J. said in Angle. … It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred byargument from the judgment … The question out of which the estoppel is said to arise must have been ‘fundamental to the decisionarrived at’ in the earlier proceedings: per Lord Shaw in Hoystead v.

Commissioner of Taxation [ (UK JCPC), [1926]A.C. 155]. The authors of Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed. pp. 181, 182, quoted by Megarry J. in Spens v.I.R.C. [[1970] 3 All E.R. 295], at p. 301, set forth in these words the nature of the enquiry which must be made: … whether the determination on which it is sought to found the estoppel is ‘so fundamental’ to the substantive decision that the lattercannot stand without the former.

Nothing less than this will do. [38] As a result of the law in this area, I do not see that the Plaintiffs can successfully argue here that their legal rights may beaffected by any decision in the

summary trial between AltaLink and Flatiron. [39] The Plaintiffs’ rights might possibly be affected if, for example, they sought to intervene in the

summary trial. But if theysimply do a watching brief on it, I do not think that it can successfully be argued in subsequent proceedings that the

summary trial judgehas decided something that binds or has any legal effect on the Plaintiffs. They will remain free to plead their cases against Flatiron. [40] Even if the decision in the

summary trial might be argued to be relevant to the issues in the Plaintiffs’ claims against Flatiron,a decision of one Queen’s Bench judge is not binding on another. [41] The Plaintiffs’ other concern is more subtle: that the trial judge might be pre-empted. I understand their argument here to bethat the judge hearing the trial between the Plaintiffs and Flatiron may be influenced by the decision of the

summary trial judge. [42] The Plaintiffs argue that the eventual trial judge should be free from influences, especially a decision involving the sameincident but between different parties. [43] I recognize the concern, but on the information I have about this case, their concern is, in my view, unfounded. Judges arewell capable of distinguishing decisions from other judges, and are well able to understand arguments to that effect. [44] The Plaintiffs seek damages against Flatiron because according to them, Flatiron damaged the electrical transmission linenear the Plaintiffs’ refineries.

The damage to the transmission line caused a power interruption. [45] Because of the power interruption, all electrically-driven equipment at the Plaintiffs’ refineries stopped operating. That in turncaused all crude production in the refineries to stop. [46] To resume production and restart the refineries, the Plaintiffs were required to perform an “emergency shutdown”. [47] It seeks the costs of performing the emergency shutdown and restart, along with lost production and loss of profits. [48] Obviously, the question of recoverability of damages looms large between the Plaintiffs and Flatiron.

Those claims areentirely in tort, as there was no contractual relationship between Flatiron and the Plaintiffs relevant to the loss. [49] In the context of the recoverability of damages, reasonable foreseeability will undoubtedly be a key factor. As will the issue ofeconomic loss. [50] The Plaintiffs’ submissions allude to arguments they will likely make to argue that their losses are recoverable economic loss,and not pure economic loss. [51] Thus the issues between them and Flatiron will concentrate on remoteness and economic loss. [52] The issue between Flatiron and AltaLink is centred on the

interpretation of “direct loss or damage” in the EUA. [53] It is not necessary for me to attempt to interpret the EUA or try to determine what is included in “direct loss or damage”. Thereare a number of stated exclusions. The

interpretation and application of s 90(1)(

a) will be up to the

summary trial judge. [54] The determination of that issue will be based on statutory

interpretation of a statute that has nothing to do with the claimbetween the Plaintiffs and Flatiron. [55] Beyond that, the determination of what is a “direct damage” would not, at least on the material before me, be relevant to thedamage issues between the Plaintiffs and Flatiron.

In that claim, “direct” would appear to be relevant for the determination offoreseeability, following Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound), [1961] AC 388 (PC). [56] I do not see that the distinction between “direct” damages and “indirect” damages relates to their recoverability in tort, andconcepts of pure economic loss are based not on the distinction between “direct” and “indirect” but rather on physical injury andeconomic loss that is alleged to be consequent upon the physical injury. [57] The Plaintiffs cite Young v British Columbia.

That case is not helpful here as it turned on the definition of “consequentialdamages” in the British Columbia Mining Rights Compensation Regulation, BC Reg 19/99. [58] In any event, “consequential loss” and “economic loss” are separate concepts: Canadian Tort Law (10th Ed), Linden &Feldthusen at p 469. [59] I am sure that there will be fascinating issues between the Plaintiffs and Flatiron on the difference between relational

economic loss and consequential economic loss, as portended by the cases and authorities cited by the Plaintiffs. [ 60 ] I do not see, however, that a determination between Flatiron and AltaLink that the Plaintiffs’ claims against Flatiron for “lost profits” is or is not caught by the exclusion in s 90(1)(

a) relating to “loss of profits, loss of revenue, loss of production...” (for example) might have any bearing on whether the Plaintiffs’ losses (or some of them) were not foreseeable or are unrecoverable economic loss. [ 61 ] Similar arguments may be made regarding other elements of the Plaintiffs’ damage claims, and the meaning of “any other indirect, special or consequential loss or damage whatoever”. [ 62 ] Since Imperial Oil’s lost profits claim alone amounts to over 80% of its total claim against Flatiron, and Suncor’s loss of profits claim is nearly 70% of its total claim against Flatiron, I can understand why AltaLink might want to have this particular issue determined at an early, pre-production and pre-questioning stage. [ 63 ] That is especially so when the Plaintiffs characterize the matter as “far from simple or straightforward” and a full trial of the issues is likely years off. [ 64 ] I recognize that the

summary trial may not resolve all of the issues between Flatiron and AltaLink. Some or all of the damages claimed by the Plaintiffs may not fall outside “direct loss or damage” as defined in the Electric Utilities Act . [ 65 ] However, it may be very helpful to both AltaLink and to Flatiron to know if the real dispute between them is $27,000,000 as claimed in the two actions, or $7,000,000 or less, if the loss of profits claim (for example) is excluded. [ 66 ] Undoubtedly, it will be in Flatiron’s interests in the

summary trial to preserve as much of an indemnity claim as is possible. [ 67 ] In any event, I do not see that the Plaintiffs have made out any reasonable argument in favour of a finding of potential prejudice to them. Appropriateness of

Summary Trial [ 68 ] I am satisfied that it is appropriate to have the question as stated by AltaLink proceed to a

summary trial on the issue: Whether AltaLink has statutory protection from the damages claimed in the third party proceedings filed by Flatiron, by virtue of the protection provided by the Electric Utilities Act and Regulations. [ 69 ] Flatiron has raised no objection, and

summary trial is appropriate for this issue, following the principles set out in Enerflow and SHN Grundstuecksverwaltungsgesellschaft MBH & Co v Hanne , 2012 ABQB 624 . [ 70 ] It is significant that Flatiron does not oppose the application for

summary trial. Nevertheless, I must still consider the appropriateness of the procedure in these actions. [ 71 ] To do so, I need to consider the factors listed in those cases. The amount involved [ 72 ] That is irrelevant here. The issues proposed to be dealt with are not tied into the quantum of damages. It is certainly arguable that matters involving a small amount of money should be resolved in a process commensurate with the amount being claimed, but it does not follow that disputes over large amounts are not suitable to

summary proceedings. The complexity of the matter [ 73 ] That factor has more to do with the amount of time necessary for the process and the manner necessary to determine the issues. Where competing experts are involved, or where there are major factual determinations to be made,

summary proceedings are less likely to be appropriate. Here, those sorts of disputes do not appear to be involved. The nature of the losses claimed seems clear. The dispute is over the legal characterization of those losses. Urgency [ 74 ] There is nothing urgent about this application, although from the perspective of AltaLink they undoubtedly want this matter determined before they are drawn further into questioning and production of records.

While this is not an urgent matter such that it might take priority over other disputes, the legal issues warrant resolution before AltaLink and Flatiron have spent more resources on quantum issues. Any prejudice likely to arise by reason of delay [ 75 ] There is potential prejudice to AltaLink if kept in the litigation in that it will be required to expend resources that are not recoverable even in the event of complete success at trial.

Full indemnification costs are rare in disputes like this, and internal costs such as the time spent by management and employees in instructing counsel, retrieving records, attending questioning and the like are not recoverable at all. The cost of taking the case forward to a conventional trial in relation to the amount

involved [ 76 ] There is a reasonable prospect that these issues between Flatiron and AltaLink can be resolved in the fashion proposed. The resolution may not extricate AltaLink from the proceedings completely in the event some of the damages claimed against Flatiron are characterized as “direct” or are potentially direct. But if AltaLink is required to participate in a full trial that will also determine what are and what are not “direct” damages, it will have to be fully prepared to participate on quantum issues on all areas of damages. The cost of doing so may be disproportionate to what they might ultimately be found liable. The course of proceedings [ 77 ] I do not see that

summary trial between Flatiron and AltaLink will delay any progress in the action between the Plaintiffs and Flatiron. The “main” action is capable of proceeding parallel to the

summary trial process. Whether all witnesses or only some were (will be) cross-examined in court [ 78 ] From the information presented on this application, it would seem unlikely that any oral evidence would be necessary or helpful in determining the issues. Whether there is a real possibility that the defendant can bolster its evidence by discovery of the third party’s documents and witnesses [ 79 ] From the information presented, it does not seem that AltaLink has any records or witnesses who may be helpful to Flatiron’s defence of the Plaintiffs’ claims.

The claim against AltaLink is based on entirely different considerations than the Plaintiffs’ claims against Flatiron. Whether the resolution will depend on findings of credibility [ 80 ] Credibility would not appear to be in issue between Flatiron and AltaLink. Conclusion [ 81 ] Thus, there is no factor that points against the appropriateness of

summary trial. [ 82 ] The Plaintiffs’ application to dismiss AltaLink’s application for

summary judgment is dismissed. [ 83 ] Costs may be spoken to if they are not otherwise agreed between AltaLink and the Plaintiffs. [ 84 ] In preparing for and managing the

summary trial, it would be useful for AltaLink and Flatiron to agree on the process and the timing. Failing agreement, the parties might arrange for a case conference under Rule 4.10. The parties would be well advised to follow the procedure detailed n Moncrieff v Hayne , 2013 ABQB 657 (reversed on other grounds, 2014 ABCA 297 ). Heard on the 28 th day of April, 2016. Dated at the City of Edmonton, Alberta, this 2 nd day of June, 2016. Robert A. Graesser J.C.Q.B.A.

Appearances: J.A. Kotkas Fasken Martineau DuMoulin LLP for AltaLink M.W. McCachen and I.J. Breneman Blake, Cassels & Graydon LLP for Suncor R.R. Nelson Brownlee LLP for Flatiron _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Paragraph 68 has been corrected to read: [68] I am satisfied that it is appropriate to have the question as stated by AltaLink proceed to a

summary trial on the issue: Whether AltaLink has statutory protection from the damages claimed in the third party proceedings filed by Flatiron, by virtue of the protection provided by the Electric Utilities Act and Regulations.