Stoney Tribal Council v Encana, 2017 ABQB 812

Court of Queen’s Bench of Alberta Citation: Stoney Tribal Council v Encana, 2017 ABQB 812 Date: 20171222 Docket: 9901 03798 Registry: Calgary

Between: Stoney Tribal Council, Representing the Chiefs, Councils and Members of the Bearspaw, Chiniki and Wesley Bands Plaintiffs/Respondents - and - Encana Corporation (formerly PanCanadian Petroleum Limited) Defendant/Applicant - and - Her Majesty the Queen In Right of Canada and Canadian Pacific Railway Company Defendants And: Her Majesty the Queen In Right of Canada, Canadian Pacific Railway Company, Canadian Pacific Ltd., Fairmont Hotels and Resorts Inc., PanCanadian Petroleum Ltd., and Encana Corp. Third Parties - and - The Attorney General of Alberta Intervenor

_______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] Encana seeks

summary dismissal of all “Trespass Related Claims” against it that arose prior to September 28, 1999. It will defend at trial Trespass Related Claims arising after that date.

The application requires determination of the date that any applicable limitation period commenced running for the Stoney Nakoda Nation’s ( “SNN ”) damages claims against Encana. [ 2 ] Encana’s reference to “Trespass Related Claims” adopts the definition of those claims used in an earlier decision in the case management of this matter: Stoney Nakoda Nations v Canada , 2016 ABQB 193 (the “ CPR Dismissal Decision ”); aff’d with respect to the dismissal of all claims against CPR: 2017 ABCA 432 .

The CPR Dismissal Decision defined Trespass-Related Claims as follows, at para 60: […] damages and/or an accounting for unlawful possession, use or occupation, trespass and conversion (collectively, the “ Trespass Related ” claims). ... [I] find that all Trespass Related claims are claims for damages. ... Against Encana the SNN claim the Trespass Related claims and for return of in situ PNG. [ 3 ] The CPR Dismissal Decision contains the factual, procedural and legal background to this application. It also provides the occasion for this application.

It states, at para 315: […] Encana may be in a position to have dismissed as against it some of the monetary damages claimed, as falling outside an applicable provincial limitation period, for the same reasons I have dismissed all claims against CPR for damages. I am not comfortable doing so on the basis of current counsel submissions and, in any event, the current evidentiary record does not enable it to be done definitively. This decision is without prejudice to any such future request by Encana.

Encana is now seeking that relief. [ 4 ] The SNN say no limitation period expired and that, in any event, trial on the merits is required to adjudicate justly and fairly all such claims. The SNN say on this application that Encana has to sufficiently bolster a previously deficient record before the Court can make a fair and just determination without a trial. [ 5 ] While that is true, it is not the only reason that the relief Encana now requests was not able to be considered in the context of its earlier dismissal application, nor even the primary reason.

As stated at paragraph 315 of that decision, the Court was “not comfortable doing so on the basis of current counsel submissions”. That is, the first reason mentioned for not granting the sort of relief now requested by Encana, is that it was not argued until now. Granting such relief would have been without it being requested by Encana and, more critically, without the SNN having opportunity to respond to such a request. [ 6 ] I now have the benefit of counsel’s submissions, as well as supplemental evidence.

The additional evidence adduced on this application record clarifies some of those matters the SNN say required bolstering, and reveals further facts. Nevertheless, the statement at paragraph 6 of the CPR Dismissal Decision applies also to this decision: “ None of the findings of fact in this decision prejudice the positions of the SNN and Canada in the issues between them in this litigation.” [ 7 ] For the reasons that follow, I grant the application.

Scope of Application [ 8 ] Encana is not seeking, at this time, dismissal of the claim against it for return of in situ PNG, only the Trespass Related Claims falling outside the applicable limitation provision, which it says are those arising prior to September 28, 1999 (two years before its predecessor was added as a defendant to the claim). The Trespass Related Claims allege continuing legal injuries, such that each day the alleged Trespass Related Claims continue is a new and separately actionable wrong.

See in that regard RVB Management Ltd. v Rocky Mountain House (Town) , 2015 ABCA 188 . [ 9 ] The Trespass Related Claims do not include, notably, any claim for unjust enrichment. For the first time since commencing this litigation against Encana, 16 years ago, the SNN say their claim also enables them to claim a remedy from Encana for unjust enrichment. They do so, it appears, to benefit from a 6-year limitation period under the limitations statute in force at the time the action was commenced against HMTQ and CPR.

Damages claims against Encana, they appear to accept, attract only the 2-year limitation period under that earlier statute. But, likely because when commencing this

summary dismissal application Encana had no idea the SNN were also alleging unjust enrichment, dismissal of all or part of the claim for unjust enrichment was not included within its application. This application is for dismissal only of the Trespass Related Claims that arose before commencement of the applicable limitation period. Whether or not a cause of action for unjust enrichment can be pursued on the existing pleadings is of no consequence for this application. It is not properly before me and I make no ruling in that regard.

[10] I am also not commenting on the issue of the new Constitutional Notice recently filed by SNN as it was not relevant for thisapplication. Case Management Directions on the Claim in Unjust Enrichment [11] Some additional case management directions are warranted regarding the parties disagreement about the SNN claimingrecovery in unjust enrichment. In this decision I make no finding on whether unjust enrichment is or is not available on the existingpleadings or whether the SNN are estopped from now asserting this as a cause of action.

However, because of their silence on the pointthese past 16 years, leaving the distinct appearance the SNN only recently thought of unjust enrichment, fairness dictates that the onus beupon the SNN to bring clarity to this issue before they can be permitted to pursue unjust enrichment at trial against Encana. Until theSNN are permitted by the Court to recover for unjust enrichment based on the current pleadings or by amending them to make such aclaim express, Encana need not answer any such claim. [12] Any such steps must be undertaken promptly to avoid risk of frustrating the current litigation plan.

Any unexplained delay inthat regard will risk loss of the opportunity to include such a cause of action against Encana. Both sides have all arguments available tothem on any such application by the SNN to pursue a claim in unjust enrichment, making express what they say is already disclosed bytheir pleadings. I am merely saying that any such cause of action in unjust enrichment is outside the scope of this application, Encana’sapplication regarding dismissal of the Trespass-Related Claims arising prior to the commencement of the applicable limitation period. Test for

Summary Dismissal [13] The test for

summary dismissal is not in dispute. It has not changed since the CPR Dismissal Decision, though the expressionof it has been restated, for example recently in Goodswimmer v Canada (AG), 2017 ABCA 365 at para 25: Litigation can be disposed of summarily when the court is able to reach a fair and just determination on the merits using a

summaryprocess. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to applythe law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v Mauldin,2014 SCC 7 at para. 49, [2014] 1 SCR 87. The party resisting

summary dismissal must “put its best foot forward”, and cannot rely onvague assertions that more or better evidence might turn up if the matter was sent to trial: Lameman SCC at paras. 11, 19. And since Goodswimmer, in the appeal of this case, the Alberta Court of Appeal has re-enforced its initial framing of the testpost-Hryniak in Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108.

Applicable Limitations Laws [14] Provincial limitations laws are constitutionally applicable to damages claims by first nations: CPR Dismissal Decision at para86. [15] SNN commenced this action against CPR and Canada on February 26, 1999. At the time, the Limitation of Actions Act, RSA1980, c L-15, was in force (the “Old Limitations Statute”). [16] Three days later the Limitations Act, RSA 2000 c L12, came into force – effective March 1, 1999:

section 2 of the LimitationsAct (the “New Limitations Statute”). [17] On September 28, 2001, after the New Limitations Statute came into force, the SNN filed an Amended Statement of Claim,adding PanCanadian Petroleum Limited (a predecessor to Encana) as a defendant. [18] Absent any finding otherwise, the Old Limitations Statute applies to the Trespass Related Claims against Encana. Sub-section2(1) of the New Limitations Statute states: 2(1) This Act applies where a claimant seeks a remedial order in a proceeding commenced on or after March 1, 1999, whether the claimarises before, on or after March 1, 1999.

Since the “proceeding” commenced prior to March 1, 1999, the New Limitations Statute does not apply. [19] Encana says the operative date is the date the claim against it commenced, September 28, 2001. It says the limitation periodcut-off is two years prior to that date not prior to the date the proceeding commenced, February 26, 1999. [20] The SNN submit that the 2 years runs back from the date the proceeding commenced (February 26, 1999) not from the dateEncana was added to the proceeding (September 28, 2001).

It relies on Korte v Deloitte, Haskins and Sells, (1996) 1996 ABCA 15, 178 AR 199 (CA), which says at para 37: The authorities suggest that an amendment usually dates from the date of the statement of claim. See, e.g., Owens v. Calgary Farmer,[1927] 3 W.W.R. (Alta. S.C. Chambers) and Bernard v. Yurich (1988), (AB KB), 81 A.R. 1 (Funduk, M.C.).However, where an amendment is permitted that adds a new cause of action, the Court may order that the new cause of action takeseffect only from the date of the amendment. Dunwoodco Ltd. v. Stermac (1970), 5.O.R. (2d) 454 (Ont. S.C. Chambers).

In that case, ithad been argued that the new claim was statute-barred; the complexities of the facts led the chambers judge to conclude that some of theclaims might be statute-barred; he therefore allowed the defendant the benefit of such arguments by making the amendments effective asof the date that the application to amend was brought. [emphasis in original]

Here there was no order that the new cause of action take effect only from the date of the amendment. [21] A Master by fiat, pursuant to Rule 132,[1] allowed the amendment that included adding Encana, by its predecessorPanCanadian, to the original proceeding. Apparently the SNN did not give PanCanadian notice of the planned appearance before theMaster. It appears also that after the SNN served its filed Amended Statement of Claim on PanCanadian, that PanCanadian did not objectto the ex parte fiat.

It did not challenge the fiat after learning of it, for example to reverse it or to make it subject to terms around effectivedate of the claim against it for limitation purposes. I note that it did raise the issue in its Statement of Defence. [22] In this case the Court did not set any conditions in respect of the added claims against Encana. Therefore, say the SNN, thetime limitation must run from the commencement of the proceeding not from the date Encana was added or any other date the Court setas part of any conditions. [23] I disagree.

That would reward the SNN for failing to properly apply to amend the claim as they ought to have done, that is, onnotice. The Court of Appeal in Korte continued after the portion relied on by the SNN (quoted above), to state at paras 38 and 39: I am of the view that if an amendment raises the possibility of a limitations argument, leave of the Court should be required to amend.This is so because the inability to rely upon a limitation argument may work prejudice upon the party against whom the amendment issought. As such, it is a situation that falls outside the broad language of Rule 130.

The judge hearing such an application for leave to amend has a number of choices. He or she may agree that the new claim is out of timeand thus disallow the amendment; may determine that the sort of special circumstances referred to in Basarsky exist, and allow theamendment nevertheless; or decide that the limitation argument is of the kind that ought to be determined at trial, upon a factual base.[emphasis in original] [24] This is the first occasion in this proceeding for the Court to consider whether any of the sorts of factors identified by the Courtof Appeal in Korte warrant imposition of a condition.

Encana’s predecessor ought to have returned the matter to Court upon learning ofthe ex parte fiat, but that failing is a consideration for costs not an express waiver of a legal right. It had different counsel at that timethan it does on this application. [25] In Geophysical Service Incorporated v Suncor Energy Inc, 2017 ABQB 465, a decision dealing only with the New LimitationsStatute, this Court said at paras 26 and 27: […] if an amendment raises the possibility of a limitations argument, the party should seek leave of the court: Korte v Cormie (1996),1996 ABCA 15 , 178 AR 199 (Alta. C.A.) at para 38.

In the circumstances here, GSI should have sought the court’s permissionto bring its amendments. Had GSI brought such an application, the court would have had three choices: (1) determine that the limitation period had not expiredand allow the amendments; (2) rule that the limitation period had expired and consider whether

section 6 of the Limitations Act appliedto allow amendments beyond the limitation period, if the elements of the test were satisfied; or, (3) allow the amendments subject to adetermination of the limitation issues at trial.

The same analysis needs to be undertaken here, even though the amendments have alreadybeen made. [26] The Court of Appeal in Korte added, at para 40 , that the “failure to obtain leave to add a party is an irregularity within thediscretion of the court to correct.” [27] I find the operative date for limitations purposes on the claims against Encana to be the date of the amendment adding it to theproceeding: September 28, 2001.

In Owens v Calgary Farmer & Calgary Weekly Herald, (AB KB), [1927] 4 DLR 159(Alta SC (Chambers)), referred to in Korte, Walsh J. wrote at paras 3 and 4: The Courts, in the exercise of the very wide discretionary powers to amend given to them have as a rule refused to permit amendmentswhich would enable the plaintiff to litigate a cause of action with respect to which his remedy was gone at the time of the application forleave to amend. Weldon v.

Neal (1887), 19 Q.B.D. 394, is an outstanding example of this. […] […] If it is improper to enlarge the remedy against a defendant in an action properly brought against him if by such enlargement astatutory protection accrued to him since it was brought is swept away much more improper is it in my judgment to bring into an action anew defendant against whom the plaintiff had long before lost any right which he ever had. [28] To rule otherwise would invite plaintiffs to not be diligent about identifying the appropriate parties to name as defendantswithin the limitations deadlines, because they could add them later with impunity. [29] Finally in this regard, it appears that if this proceeding had commenced a few days later, after March 1, 1999, my conclusionwould parallel the effect of sub-sections 6(1) and (4) of the New Limitations Statute, which state (subsections 6(2) and (3) do not apply): 6

(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced,either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of theadded claim if the requirements of subsection (2), (3) or (4) are satisfied. […]

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the

service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits. [ 30 ] I find the SNN’s failure to have properly applied to add Encana as a defendant to be prejudicial to Encana. It would have the effect of denying Encana approximately 2 ½ years’ limitations protection without opportunity to resist; it was initially denied the right to press the Court for conditions including asserting the very limitations laws it now relies on. [ 31 ] The SNN say the time period I should apply is 6 years not 2, but that is based on the unjust enrichment claim being grounded in equity and engaging paragraph 4(1)(

e) of the Old Limitations Statute. But as I earlier explained, the claim in unjust enrichment falls outside the relief Encana has requested in this application. The Trespass Related Claims are all subject to the 2-year time limitation. When did the SNN Discover the Trespass Related Claims against Encana? [ 32 ] I find the SNN discovered in June 1993, at the latest, about Encana’s predecessor’s purported stake in the PNG, from which they knew or ought to have known of the Trespass Related Claims.

In 1993, Chiefs John Ear (Bearspaw Band), Ken Soldier (Chiniki Band) and Ernest Wesley (Wesley Band) signed unit agreements for both JPW1 and JPW2. They signed as directors of 218336 Dev. Ltd. [ 33 ] The unit agreements show PanCanadian holding working interests in the CPR right-of-way through the Stoney reserve.

The following are examples from exhibit A to the JPW1 unit agreement which lists all the unit holders and specifically refers to the legal description, the number of acres, tract participation factor, working interest owners and royalty owners: • Tract no. 50 which refers to 20.20 acres of the Stoney Indian Reserve and to the right-of-way of the CPR “as shown on a Plan filed in the Land Titles office for the South Alberta Land Registration District as RY 10 [2] ”.

The working interest owner and royalty owner is PanCanadian Petroleum Limited. • Tract no. 30 has PanCanadian Petroleum Limited as working interest owner and royalty owner; it refers to “railway right of way” of CPR and to RY10. • Tract no. 52 indicates that the Department of Indian Affairs and Northern Development, Home Oil Company Limited and 512715 Alberta Ltd. are royalty owners.

The legal description refers to the Stoney Indian Reserve and excepts out a part of the railway right-of- way. [ 34 ] Similarly, the following are examples with respect to JPW2: • Tract no. 2 shows the Department of Indian Affairs and Northern Development as royalty interest owners and PanCanadian as working interest owners.

The legal description refers to the “Stony Indian Reserve” and excepts thereout “that portion of a railway right- of-way [...]” • Tract no. 11 is described as being within the “Stony Indian Reserve” occupied by a railway right-of-way with PanCanadian Petroleum Limited and Home Oil Company Limited as royalty interest owners. [ 35 ] From these references the SNN had clear notice of the alleged trespass, conversion, use, occupation and other Trespass Related conduct by Encana’s predecessors. This was well before September 28, 1999.

Therefore, the first date Encana may be at risk to the SNN for the Trespass Related Claims is September 28, 1999, two years prior to those claims being commenced against it. [ 36 ] The SNN say the Court should not accept the signatures on the JPW unit agreements as determinative for limitation purposes, since, they argue, people signing such agreements only pay attention to the references of personal interest. Typically, they argue, people ignore all other information in such exhibits to unit agreements.

In this case, they theorize, the Chiefs only ensured the accuracy of the information on the lines for 218336 Dev. Ltd. and could not be taken to have noticed anything else. [ 37 ] I do not find this reasoning persuasive. First, it is theory only, not supported by any evidence. Second, it is not something that can be judicially noticed : R v Find , 2001 SCC 32 at para 48 . Third, on some entries directly above and below the lines in respect of 218336 Dev. Ltd are references to the Stoney Reserve and PanCanadian such as those referred to above.

It would be extraordinarily difficult for the Chiefs not to notice those references. [ 38 ] I consider the appropriate date from which the two years back is calculated to be the date the Encana was added as a defendant to face the Trespass Related Claims, September 28, 2001. All such claims arising more than two years prior to that date, therefore, are time-barred. They have no hope of succeeding; there are no material issues of fact therefore warranting trial on the Trespass Related Claims arising prior to September 28, 1999.

Conclusion [ 39 ] Therefore I summarily dismiss all Trespass Related Claims against Encana arising prior to September 28, 1999. The parties may speak to costs if they cannot agree.

Heard on the 16 th and 17 th days of November, 2017. Dated at the City of Calgary, Alberta this 22 nd day of December, 2017. P.R. Jeffrey J.C.Q.B.A. Appearances: C. Willms, K. O’Callaghan & H. Roskey for the Applicant, Encana Corporation T. Osvath & B. Barrett for the Stoney Tribal Council, representing the Stoney Nakoda Nations