Remington Development Corporation v Enmax Power Corporation, 2021 ABQB 261

Court of Queen’s Bench of Alberta Citation: Remington Development Corporation v Enmax Power Corporation, 2021 ABQB 261 Date: 20210531 Docket: 0801-14506 Registry: Calgary Between: Remington Development Corporation Appellant - and - Enmax Power Corporation Respondent Corrected judgment: A corrigendum was issued on July 28, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H. Hollins _______________________________________________________

Appeal from the Decision by A.R. Robertson, Master in Chambers Filed on the 1 st day of October, 2019 Dated the1 st day of October, 2019 ( 2019 ABQB 754 , Docket: 0801 14506) [ 1 ] The Plaintiff and Defendant have been locked in litigation for years. Remington is the owner of lands in downtown Calgary adjacent to the railway tracks; the Interlink Lands. Enmax’s equipment and transmissions lines providing electricity to the city are located on the Interlink Lands.

Before Remington purchased this property, Enmax was accessing its lines on the Interlink Lands under a series of Transmission Agreements with the prior landowner. [ 2 ] Remington wants to develop the Interlink Lands and therefore wants Enmax off its property. It brought this action for damages in trespass and for unauthorized use of its lands. In 2010, Remington obtained a decision of this Court confirming its right to terminate the Transmission Agreements. As a result of that decision, Enmax applied to the Alberta Utilities Commission (AUC) to relocate its lines.

When the AUC denied that request, Enmax went to the Surface Rights Board (SRB) to obtain Right-of-Entry (ROE) Orders granting it access to the Interlink Lands. [ 3 ] Remington objected to Enmax’s application to the SRB, saying it violated an agreement between the parties by which Enmax agreed not to make such an application. After a series of decisions of this Court and the Court of Appeal, it has been determined that both the SRB compensation process and this action will proceed.

However, Remington wants to amend its claim to add damages arising from Enmax’s initiation of the SRB proceedings, namely the costs and fees associated therewith. [ 4 ] Master Robertson dismissed Remington’s application to amend; 2019 ABQB 754 . He agreed with Enmax that Enmax was legislatively required to obtain the ROE Orders from the SRB, meaning that its covenant not to go to the SRB was an illegal contract, the breach of which could not give rise to recovery of damages by Remington. In his view, the amendment was hopeless and therefore not allowed.

That decision is appealed to this Court. [ 5 ] For the reasons that follow, Remington’s appeal from the Master's decision is allowed. I. Background [ 6 ] Enmax or its predecessor, Calgary Power Ltd, has operated its electrical transmission lines and equipment on the Interlink Lands since 1948 under Transmission Agreements with the previous landowner, Canadian Pacific Railway. In 2002, Remington purchased the Interlink Lands and purported to terminate the existing Transmission Agreements. Remington also commenced legal action, suing Enmax in breach of contract, trespass and unjust enrichment.

After some years of litigation, the parties entered into the September 1, 2010 Letter Agreement, by which they agreed to a number of substantive and procedural steps going forward. [ 7 ] Under the Letter Agreement, Remington agreed to waive its claims for damages other than for Enmax’s unauthorized use of the Interlink Lands. The parties agreed to have the issue of liability (whether or not Remington could terminate the Transmission Agreements) determined at a Special Chambers Application and to bifurcate that determination from the assessment of any damages.

If Remington was found to be legally able to terminate Enmax’s access and force the removal of its lines, Enmax would make the required application to do so to the AUC.

Remington preserved its rights to participate in that AUC hearing and to appeal any adverse decision and Enmax agreed not to circumvent the process by attempting to acquire rights to access the Interlink Lands under statute or regulation [1] . [ 8 ] A more fulsome procedural history is appended hereto but the following summarizes the material decisions in these proceedings. [ 9 ] In November of 2010, the parties signed a Consent Order to proceed with a Special Chambers Application to determine: (

a) if the assignment of the Transmission Agreements to Remington was valid as against Enmax; and (

b) if Remington was entitled to terminate the Transmission Agreements. [ 10 ] In November of 2011, Justice Park issued his decision, finding in Remington's favour on both questions set out above; 2011 ABQB 694 (appeal dismissed 2012 ABCA 196 ). That decision also acknowledged that this meant an application had to be made to the AUC for Enmax to relocate its lines; para 78. [ 11 ] In August of 2014, Enmax initiated its application to the AUC. The Letter Agreement had not only envisioned the possibility of this AUC application but had set out the following further agreements: (

a) Enmax was obligated to make all reasonable efforts to secure AUC approval to relocate the lines and Remington agreed not to object if Enmax sought to recover the costs of relocation from consumers under its tariff; (

b) Remington was free to participate in the AUC application to relocate the lines, including applying for intervenor status, without objection from Enmax; (

c) If the AUC denied the application, Remington could seek leave to appeal or argue at the appeal, again without objection from

Enmax; and (

d) Other than its right to appeal the Special Chambers decision, Enmax agreed “not to take steps to circumvent the Court’s decision on the Special Application [the one before Park, J] or attempt to reacquire any right of way or right of entry through Remington-owned lands pursuant to governmental or regulatory order or otherwise.” (it is this covenant which Remington says Enmax has breached). [ 12 ] Although Remington had the ability to appear and make submissions at the AUC hearing, at least without objection from Enmax, it did not do so.

As numerous other judges have speculated, it appears that neither party really thought the application to relocate the lines would be dismissed. But it was. On May 14, 2015, the AUC said Enmax’s proposal, which included passing the cost of relocation onto its customers, was not in the public interest. [ 13 ] Remington applied for a review of that AUC decision but the review was dismissed.

Remington sought leave to appeal that dismissal to the Court of Appeal but was denied leave by MacDonald, JA; 2016 ABCA 6 . [ 14 ] Enmax applied to the SRB for ROE Orders on or about July 6, 2017 and applied to this Court to stay this Action in favour of proceeding before the SRB. Master Farrington heard the stay application on July 12, 2017 and dismissed it on July 25, 2017. Enmax appealed that decision. For its part, Remington applied for an Order compelling Enmax to withdraw its SRB application, relying on the Letter Agreement.

Enmax’s appeal and Remington’s application were heard together by Justice Kent but the SRB hearing proceeded on May 17, 2018, before the Queen’s Bench applications were heard. [ 15 ] Remington also raised its objection directly with the SRB, citing the existing action and the Letter Agreement. The SRB said it was not bound by any private agreement between Enmax and Remington and that once Enmax applied, it had statutory jurisdiction to proceed. It granted Enmax the ROE Orders on May 18, 2018.

Once the ROE orders were granted, the SRB was statutorily required to determine compensation for the landowner in respect of the access granted so it scheduled compensation hearings to begin in January, 2019. [ 16 ] In the meantime, on July 4, 2018, Justice Kent heard Remington’s application for an Order compelling Enmax to withdraw its SRB application, along with Enmax’s appeal of Master Farrington’s Order. As the SRB had already issued ROE Orders by the time Justice Kent heard these matters, only the SRB compensation hearings remained.

On August 14, 2018, Justice Kent dismissed Enmax’s appeal and directed it to withdraw its SRB application and leave determination of all damages to this Court. She based her decision on the possibility – apparently now confirmed - that the SRB could only set compensation prospectively from the date of the ROE Orders, leaving any retroactive compensation for determination in this Action. [ 17 ] Enmax appealed Justice Kent’s Order.

Although the Court of Appeal judgment of February 20, 2019 dismissed the appeal, it effectively said that as both the SRB and Queen’s Bench matters were underway, both could and should continue their respective assessments of damages. [ 18 ] Notwithstanding all the foregoing court and administrative appearances, the question of whether or not Enmax’s SRB application breached the Letter Agreement has never been squarely addressed.

Remington now seeks leave to amend its pleadings to add a claim for damages from that breach, if proven. [ 19 ] Master Robertson found that Remington would never be able to recover damages for any breach of the Letter Agreement because the covenant not to go to the SRB was illegal in the face of the statutory paramountcy of the Surface Rights Act (“the Act ”). Therefore, the amendments sought by Remington were hopeless. [ 20 ] In my view, given the low standards required to add amendments to existing pleadings, it cannot reasonably be said that Remington’s claims are hopeless.

I am not convinced that the Letter Agreement is a necessarily an illegal contract or that if it is, its conflict with the Act absolutely precludes the possibility of Remington’s recovery, if a breach were proven. I want to emphasize that I make no comment about whether or not a trial judge will ultimately find the Letter Agreement illegal, unenforceable or otherwise, nor whether she will find a breach or any damages. I merely find that, at this stage, there are legal arguments that can be advanced such that the amendments sought are not hopeless. II.

Standard of Review [ 21 ] The Appellant described this as an appeal de novo , citing Brian W Conway Professional Corporation v River Rock Lodge Corporation , 2015 ABQB 359 at para 26 . An appeal from the Master is often described to and by this Court as an appeal de novo, notwithstanding that the wording of Rule 6.14(3) clearly describes it as an appeal “on the record”.

The continuing description of these appeals as de novo in the face of a Rule that says otherwise seems to trace back to the decision of Côté , JA in Bahcheli v Yorkton Securities , 2012 ABCA 166 where he said: The big issue in this judgment is the standard of review on appeal from a master to a judge. Terminology is not completely consistent for the standard of review which was adopted by the Alberta Courts before the new Rules came into force. It is sometimes called non- deferential, and sometimes called an appeal de novo .

But more commonly the term used is “correctness”…; para 3. [ 22 ] Justice Côté’s reasons were expressly directed to the standard of review – now settled to be correctness – and not to the evidence allowed on appeal. In fact, he clearly distinguishes the standard of review on appeal from the evidence considered on appeal at paragraph 10 of his Reasons.

These concepts, while separate, are obviously linked and that was, in fact, Justice Côté’s point; if the appellant has the ability to amplify the record from below and the appeal is thus based on something different than the evidence before the Master, the standard of review cannot be higher than correctness. [ 23 ] With respect to my colleagues, I do not read Justice Côté’s words as saying that all appeals from the Master to our Court are automatically appeals de novo but rather that the low threshold for the introduction of new evidence on appeal [2] means that a true

“appeal on the record” will be the exception rather than the rule. [ 24 ] Because appellants can amplify the record relatively easily and because the standard of review is correctness which does not require deference to the Master’s decision, I agree that it looks less like an appeal on the record and more like an appeal de novo . Indeed, that is what Justice Campbell actually said in Brian Conway v River Rock, supra at paras 25-26. [ 25 ] In this case, there was additional evidence filed between the Master’s hearing and the appeal, namely the Affidavit of Randy Remington sworn and filed on January 16, 2020.

No express request was made of me to admit this evidence under Rule 6.14(3) which requires me to determine whether such additional evidence is relevant and material to the appeal. Based on the Appellant’s Brief, it appears that the primary reason for the additional (third) Affidavit of Mr.

Remington was to provide evidence that the Remington had never prevented or restricted Enmax from accessing the Interlink Lands, i.e. it had effectively consented to such access and therefore the SRB application was not necessary. [ 26 ] As the parties have already fully argued their respective positions including the issue of Remington’s purported consent, it must be treated as material and relevant and so I admit that evidence.

It would be my preference that, particularly in document-intensive Masters appeals, any new evidence is identified as such to the Justice on appeal and a preliminary determination is made regarding its admissibility. [ 27 ] Enmax says that the Master’s decision should not be overturned unless there is a clear error in law, a palpable or overriding error of fact or another appropriate reason, citing Infante v Dzogov , 2016 ABQB 41 at para 19 . With the greatest of respect to my sister, her recitation of that standard of review itself cited a number of cases which preceded the changes to our Rules in 2010.

The standard of review is unequivocally correctness; Bahcheli at para 3 . [ 28 ] This is not to say that we disregard the decision of the Master as though it had not been made (which would be a true de novo hearing). Rather, this is still a review of his decision and there remains a burden on the appellant to show me that it was not correct, even though I owe no deference to the Master’s decision; HOOPP Realty Inc v Emery Jamieson LLP , January 3, 2019 (oral judgment) at p.2, lines 31-41. A. Test for Allowing Amendments [ 29 ] Amendments should generally be allowed unless: (

a) the amendments would cause serious prejudice not reparable in costs; (

b) the amendments are hopeless; (

c) the amendments are time-barred because of limitations; or (

d) the amendments are not pleaded or required in good faith. Dow Chemical Canada v Nova Chemicals Corporation , 2010 ABQB 524 at paras 20-21 . [ 30 ] The parties agree that the only contested ground is whether or not Remington's proposed amendments are hopeless. In Carbone v Burnett , 2019 ABCA 98 at paragraph 38 , I described “hopeless” as a claim that would have been “strikable” from the original pleading under Rule 3.68 had it initially been included.

If contested on the grounds that such a claim discloses no cause of action, no evidence can be considered on a motion to strike; Rule 3.68(2)(b). [ 31 ] While all of this is true, my description may regrettably leave the impression that no evidence can be considered on a motion to amend pleadings, which is not the case.

In fact, the applicant must generally introduce some evidence to support the amendments, albeit to a very low evidentiary threshold; Canadian Natural Resources Limited v Arcelormittal Tubular Products Roman SA , 2012 ABQB 679 at para 33 , aff’d 2013 ABCA 279 . [ 32 ] The far more eloquent treatment of the “hopelessness” test is in Attila Dogan Construction & Installation Co v AMEC Americas Ltd , 2014 ABCA 74 at paragraphs 27 and 29 : Several things might make a proposed amendment "hopeless". That category would include amendments that do not disclose a cause of action.

There may be other circumstances where the proposed amendment is so inconsistent with the record that it could fairly be described as "hopeless". Here the case management judge used the expression to indicate that the appellant had not even brought forward enough evidence to meet the low evidentiary threshold required to support an amendment. The use of the term "hopeless" in that context is not an error of law. As noted, the evidentiary standard for amendments is low, but the test does not preclude all weighing of the tendered evidence by the judge.

While it is true that the mere presence of contradictory evidence would not necessarily prevent an amendment, it does not follow that merely providing "some evidence" on each point is sufficient.

The judge is allowed to engage in some limited assessment of the evidence presented in determining if the threshold necessary to justify amendment has been met. [ 33 ] Whether on its face, considered in view of the court record or considered in view of the evidence tendered by either party, and keeping in mind the low threshold for allowing amendments, I think a proposed amendment is hopeless where it is not “arguable” ( Balm v 3512061 Canada Ltd , 2003 ABCA 98 at para 12 ) or not “viable” ( Canadian Natural Resources Ltd v Arcelormittal , 2012 ABQB 679 , throughout). B. Illegality of the Letter Agreement

[34] To review, Enmax had covenanted, in the face of an agreed-upon procedure for determining the parties’ rights in Queen’sBench, not to attempt to reacquire any right of entry by regulatory order i.e. an SRB ROE Order. It made its application to the SRB in2018 after the AUC had denied its application to relocate its lines.

In fact, one of Enmax’s arguments against the alleged breach is thatthe covenant to forbear seeking relief from the SRB expired when the AUC’s decision was released. [35] Enmax further argues that its covenant not to apply to the SRB was in direct conflict with s.12 of the Act, which provides thatno operator has a right of entry unless it has the landowner’s consent or a ROE Order. Enmax says it had no choice but to apply orcontinue in a state of alleged trespass.

Once it did apply, it says that s.2(2) of the Act rendered the Letter Agreement illegal and thus acontract which Remington cannot enforce. [36] Section 2(2) of the Act says: If there is a conflict between this Act and anything contained in any grant, conveyance, lease licence or other instrument, whether madebefore or after the coming into force of this Act, with respect to right of entry in respect of the surface of any land incidental to anyoperations concerning mining, drilling, pipelines, power transmission lines or telephones lines, this Act prevails. [37] The Act does not preclude the making of a contract like the Letter Agreement but rather stipulates that if such an agreementcomes into conflict with the Act, the Act will prevail. [38] The first question is whether or not the Learned Master was correct in accepting that the purported conflict between the Actand the Letter Agreement renders the latter illegal and second, whether any illegality necessarily precludes recovery.

C. The Doctrine of Illegality [39] Contracts which are made in the face of an express legislative prohibition against them are void ab initio. For example,employers cannot contract out of the minimum termination notice provisions of the Employment Standards Code. Any attempt to do sois expressly void as against public policy; Employment Standards Code, RSA 2000, c.E-9, s.4. Further, contracts may be impliedlyprohibited by statute as well and thus void ab initio; Still v Minister of National Revenue, (FCA), 1997 CarswellNat2193 at para 39.

Because such a contract was void ab initio, it could not be sued upon. [40] While that may sound simple enough, the application and indeed the evolution of the doctrine of illegality has been anythingbut. In the aforementioned Still v MNR case, Ms. Still was denied employment insurance benefits because, notwithstanding she wasotherwise qualified to receive them, she had not been legally authorized to work given her immigration status.

Her employment contractwas said to be illegal and therefore incapable of grounding benefits arising from her employment. [41] Robertson, JA writing for the court outlined the historical or “classical” doctrine of illegality by reference to Cope vRowlands, (1836) 150 ER 707 (Eng.Exch) at p.710 which said: …where the contract which the plaintiff seeks to enforce, be it express or implied, is expressly or by implication forbidden by thecommon or statute law, no court will lend its assistance to give it effect. [42] As mentioned, there is nothing in the Act that expressly precludes the making of the Letter Agreement.

Finding that a contractis impliedly prohibited by legislation therefore requires an examination of the purpose or intent of the legislation; Still, supra at para 19. [43] Further, the classical illegality doctrine has given way to the “modern” approach, or the “modern policy” approach; a morenuanced examination of how the objectives of the subject legislation relate to what actually happened between the parties.

Many of thecases that are part of the developing approach to illegality arose from people performing services they were not authorized or licensed toperform and then having the beneficiaries of that work resist payment on the grounds of the illegal contract. [44] For example, in Horizon Resource Management v Blaze Energy Ltd, 2011 ABQB 658, the owner of a mineral interest wassued by a company subcontracted to provide rig staff. The owner resisted that claim on the grounds that the subcontractor did not haveall the necessary employment permits in place.

Brooker, J opted for the “modern policy approach”, following Sidmay Ltd v WehttamInvestments Ltd, (ON CA), [1967] 1 OR 508 aff’d (SCC), [1968] SCR 828, as well as Still, supra.

Hesummarized the law as follows (para 522): 1) If the very formation of the contract is obviously and expressly prohibited by statute, or the contract is for an unlawfulpurpose, then it is void ab initio, and only in exceptional circumstances will a party be entitled to relief. 2) If it seems that the formation of the contract may be impliedly prohibited by a statutory scheme (for example certainconduct is prohibited), then the court should engage in a policy-oriented analysis, considering the effect on the parties for whoseprotection the law making the bargain illegal exists.

If the policy underlying the legislation would not be advanced by treating thecontract as void, then the court should hesitate to do so. 3) Where the purpose of the contract is not impugned, but the method of its performance is, the court should consider the goodfaith of the parties, the intention to perform the contract in a legal manner, and the relative importance of the infringement comparedwith the hardship that would be suffered by treating the contract as void.

In performing this balancing, the court must remember thepresumption of legality. [45] Brooker J found that his case fell in the third category and in the absence of any wilful or intentional breach of permittingrequirements, he allowed the subcontractor to recover the amounts due under the contract. The Court of Appeal reversed in part on anunrelated costs issue; 2013 ABCA 139. [46] Similarly, in Dodge v Eisenman, 1985 CarswellBC 372, the British Columbia Court of Appeal allowed a creditor to pursue its

right to the transfer of mineral rights from a debtor under a settlement agreement even though the creditor was not possessed of the proper certificates to hold those mineral rights. At paragraph 23, the Court said that the form of transfer was incidental to the settlement. It quoted from St. John Shipping Corp v Joseph Rank L td, [1957] 1 QB 267 at 288 : A court should not hold that any contract or class of contracts is prohibited by statute unless there is a clear implication or “necessary inference” as Parke B put it, that the statute so intended.

If a contract has as its whole object the doing of the very act which the statute prohibits, it can be argued that you can hardly make sense of a statute which forbids

an act and yet permits to be a made a contract to do it; that is a clear implication. But unless you get a clear implication of that sort, I think that a court ought to be very slow to hold that a statute intends to interfere with the rights and remedies given by the ordinary law of contract. Caution in this respect is, I think, especially necessary in these times when so much of commercial life is governed by regulations of one sort or another, which may easily be broken without wicked intent. D.

Application to the Letter Agreement [ 47 ] If the case at bar falls into Brooker J’s second category of implicit illegality, I do not think it could be said that Remington would have no hope of arguing that treating the contract as void would not advance the objectives of the Act . What is the purpose of the Act ?

While not set out in the Act itself, it appears to be to provide, regulate and compensate for the necessary access to privately-owned land to facilitate societal infrastructure requirements like mining, oil and gas transmission, power transmission or telecommunications. [ 48 ] Did Enmax’s promise not to go to the SRB go to the root of the legislative purpose? Perhaps yes. It was, after all, an agreement to forego regulatory permission required by s.12 of that Act . Or perhaps no.

There was, after all, an existing court proceeding to deal with the rights of both parties regarding Enmax’s presence on Remington’s property. None of this was fleshed out before the Master.

While he noted the paramountcy of the Act over an instrument, he did not articulate the policy reasons for s.2(2) of the Act or how those policy reasons might be affected or not affected by the circumstances of this case. [ 49 ] Further, if the illegality is found to be in the performance of the contract and not in its making (Brooker J’s third category), there would need to be an examination of the bona fides of the parties, their intentions and the impact of refusing to allow recovery under the contract. [ 50 ] Remington maintains that it consented to Enmax’s presence on its lands for purposes of maintaining and servicing its equipment and lines, evidenced by the fact that it had never physically denied access to Enmax.

Enmax denies that Remington was consenting to its presence; there is after all a lawsuit in trespass. All we know at this point is that no such consent was ever given in writing. [ 51 ] Further, although the AUC’s denial of Enmax’s request to move its lines may have been unforeseen, it arguably did not itself alter the legal status of either party.

Section 38 of the Act – the only punitive

section – says that a party exercising a right of entry without consent or a ROE Order is liable in trespass for damages. But that is precisely the claim that had already been made by Remington against Enmax, years before the AUC hearing.

Arguably, Enmax was no more compelled to get ROE Orders after the AUC hearing than it had been before the AUC hearing, although one can understand Enmax’ motivation to move from alleged trespasser to legal entrant. [ 52 ] The application of the doctrine of illegality, at least applied in a situation where there is no outright prohibition on the contract made, requires some further consideration of these questions in order to decide whether or not the covenant not to apply to the SRB was illegal and then further, whether or not the SRB application was a breach of the Letter Agreement giving rise to any damages.

That is the definition of an arguable issue. [ 53 ] I will again emphasize that I am not commenting at all on the merits of such arguments, but am compelled to allow the amendments as it is not correct, in my view, to say that they are hopeless. The appeal is therefore allowed. Heard on the 13 th day of August, 2020. Dated at the City of Calgary, Alberta thi s 31 st day of May, 2021 M.H. Hollins J.C.Q.B.A. Appearances: Grant Vogeli, QC and Kyle Gardiner for the Appellant, Remington Development Corporation

Dalton McGrath, QC and Michael O'Brien for the Respondent, Enmax Power Corporation APPENDIX “A” – PROCEDURAL HISTORY November 29, 2010: Justice Clark issued a Consent Order directing a Special Chambers Application to determine: (

a) if the assignment of the Transmission Agreements to Remington was valid as against Enmax; and (

b) if Remington was entitled to terminate the Transmission Agreements. This same Consent Order also obligated Enmax to apply to the Alberta Utilities Commission (AUC) to remove the transmission lines if Remington's Special Chambers Application was successful. November 10, 2011: Justice Park issued his decision on Remington's Special Chambers Application and found in Remington's favour on both questions delineated in Clark, J's Order. That decision, 2011 ABQB 694 at para 78 , acknowledged that this meant an application had to be made to the AUC.

June 21, 2012: The Alberta Court of Appeal upheld the November 10, 2011 decision of Park, J. ( 2012 ABCA 196 ). January 17, 2013: The Supreme Court of Canada denied Enmax’s application for leave to appeal. August 7, 2014: Enmax applied to the AUC to have the transmission lines relocated. May 14, 2015: The AUC dismissed Enmax’s application to relocate the transmission lines, saying its proposal was not in the public interest. September 16, 2015: The AUC dismissed Remington's application for a review of its May, 2015 decision. Remington then had to seek leave from the Court of Appeal to appeal the AUC decision.

January 8, 2016 The application for leave to appeal the AUC decision was dismissed by MacDonald, JA ( 2016 ABCA 6 ). June 7, 2017: Enmax applied to stay this Action in favour of proceeding before the SRB. Enmax was twice denied an interim stay. The actual stay application was heard by Master Farrington who dismissed Enmax’s application on July 25, 2017 ( 2017 ABQB 467 ). July 5, 2017: Enmax appealed Master Farrington's decision and also applied to the SRB. It first filed its SRB application in July of 2017 but was required to refile its materials which happened in February, 2018.

March 23, 2018: Remington applied to this Court for an Order compelling Enmax to withdraw its SRB application, relying on the Letter Agreement. That application was adjourned from morning chambers to a Special Chambers Application. Also, in March of 2018, Remington raised with the SRB its objection to Enmax applying to the SRB in the face of the Letter Agreement. May 17, 2018: The SRB released its decision to grant the ROE orders to Enmax ( 2018 ABSRB 195 ) Once the ROE orders were

granted, the SRB was statutorily required to determine compensation for the landowner in respect of the access granted. The SRB scheduled hearings on compensation for January, 2019. July 4, 2018: Justice Kent heard the Special Chambers Application adjourned from March 23, 2018 (Remington's application to force Enmax to withdraw its SRB application) along with Enmax’s appeal of Master Farrington's Order.

On August 14 2018, she dismissed Enmax’s appeal and allows Remington's application, compelling Enmax to withdraw its SRB application and leave determination of damages for access to this Court; ( 2018 ABQB 601 with additional reasons at 2018 ABQB 909 ). August 24, 2018: Enmax appealed the Order of Madam Justice Kent, which appeal was heard on January 14, 2019 and dismissed on February 20, 2019 ( 2019 ABCA 69 ). _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H.

Hollins _______________________________________________________ The following changes were made to the first page of the Reasons for Decision: Appeal from the Decision by A.R. Robertson, Master in Chambers Filed on the 1 st day of October, 2019 Dated the1 st day of October, 2019 ( 2021 2019 ABQB 754 , Docket: 0801 14506)