Paramount Resources Ltd v Alberta (Minister of Energy), 2024 ABKB 61

Court of King’s Bench of Alberta Citation: Paramount Resources Ltd v Alberta (Minister of Energy), 2024 ABKB 61 Date: 20240131 Docket: 2001 07403 Registry: Calgary Between: Paramount Resources Ltd.

Applicant - and - His Majesty the King In Right of Alberta and His Majesty the King In Right of Alberta, as Represented by the Minister of Energy Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice April Grosse _______________________________________________________ CONTEXT [ 1 ] In this application for judicial review, Paramount Resources Ltd challenges two decisions of the Minister of Energy regarding the deductibility of certain processing costs from natural gas royalties owed to the Crown.

[ 2 ] At all material times, Paramount [1] was a producer of natural gas in Alberta, including pursuant to Crown leases. In this decision, I refer to Paramount as a “producer” and as a “royalty client”. [ 3 ] The natural gas at issue was processed at two facilities operated by a third party, SemCAMS. SemCAMS was the majority owner of those processing plants, with various producers, including Paramount, holding smaller ownership interests. Paramount’s interest was less than 0.5% in each facility. [ 4 ] Paramount’s ownership interest allowed it to process a certain amount of gas at the SemCAMS facilities.

However, Paramount required processing services for significant quantities of natural gas beyond those commensurate with its ownership interest. Those additional volumes were processed as excess capacity volumes, for which Paramount paid SemCAMS custom processing fees, particularly known as excess capacity fees.

The excess capacity fees paid by Paramount to SemCAMS in 2011 and 2013 are the fees in issue in this dispute. [ 5 ] By statute, a royalty is reserved to the Crown on any mineral recovered pursuant to a Crown lease, including natural gas: Mines and Minerals Act , RSA 2000, c M-17 , s 33 (the Act ). [ 6 ] In effect, a portion of the natural gas that Paramount was processing at the SemCAMS facilities was the Crown’s royalty share.

The regulatory regime contemplates the Minister consenting to Crown liability for costs and allowances in relation to the Crown’s royalty share of a mineral: for example, see Act , s 36(2)(

f) and Natural Gas Royalty Regulation, 2009 , Alta Reg 221/2008 , s 18 (Royalty Regulation) [2] . The Minister may determine the amount of those costs and allowances: Royalty Regulation, s 18(3).

The Royalty Regulation also establishes reporting requirements for both operators of facilities and royalty clients: for example, Royalty Regulation, ss 18(12) and 18(14). [ 7 ] At the material times, the Minister’s department (the Department) had published the Alberta Natural Gas Royalty Guidelines, 2009 (the Guidelines) which set out more detailed guidance on royalty calculation, costs and allowances, reporting requirements and other matters.

The parties agree that the Guidelines do not have the force of law and that the Minister cannot fetter their discretion by way of the Guidelines. [ 8 ] For both 2011 and 2013, Paramount submitted a form known as an AC5 (AC5-V4 Allowable Costs Custom Processing Fees Paid) to the Department. Pursuant to the Guidelines, the AC5 is the form used by royalty clients to claim deductions from the royalty that would otherwise be owed to the Crown in recognition of the Crown’s share of the custom processing fees paid by the royalty client.

In each case, following an audit, the Department disallowed the excess capacity fees that Paramount had paid to SemCAMS on the basis that SemCAMS had not submitted specific corresponding information on its AC2-V4 reporting form (Capital & Operating Cost Allowance). The Department’s position and the relationship between the two forms is discussed in more detail below. [ 9 ] The Department issued a Notice of Determination and adjusted Paramount’s AC5 accordingly, pursuant to

section 38 of the Act . For 2011, the Department disallowed a total of $5,491,971 in costs across the two SemCAMS facilities and in 2013, the total figure was $1,428,005. Only a portion of these costs would have been deductible from the royalty owed to the Crown. Paramount estimates the net impact on its royalty obligation to be $1,659,960 total across the 2011 and 2013 years in issue. [ 10 ] Paramount objected to both Notices of Determination pursuant to

section 39 of the Act . By way of decisions dated September 30, 2019 and November 21, 2019, respectively, the Minister’s delegate concluded that the Department’s assessment was correct for both 2011 and 2013 (the 2011 Decision and the 2013 Decision or collectively, the Decisions). These are the decisions now subject to judicial review. STANDARD OF REVIEW [ 11 ] The parties agree that the standard of review is reasonableness: Canada v Vavilov , 2019 SCC 65 . [ 12 ] Reasonableness review finds its starting point in judicial restraint and respects the role of the Minister as decision-maker: Vavilov at para 75 .

My role is not to decide the issue of costs deductibility myself, nor to determine whether the Minister’s Decisions fit within a range of decisions that I might have made: Vavilov at para 83 . Rather, my review starts with the Decisions and reasons of the Minister: Vavilov at para 84 . I must examine those with “respectful attention” to determine whether the Decisions are based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrained the Minister”: Vavilov at para 85 . Both the decision-making process and the outcome are relevant.

Ultimately, the hallmarks of reasonableness are justification, transparency and intelligibility: Vavilov at para 99 . [ 13 ] In considering the Minister’s reasons, they are not to be assessed against a standard of perfection and they must be taken in context: Vavilov at paras 91 and 94 .

In this case, the context includes, among other things, the evidence and information before the Minister, the reasons given by the Department in its audit proposals, the arguments submitted by Paramount with its objections, the Guidelines, the lack of formal hearing process, the specialized knowledge and experience of the Minister and his delegate, the policy- making role of the Minister and the significant level of discretion accorded to the Minister under the legislative framework. [ 14 ] Paramount bears the burden of demonstrating that the Minister’s Decisions are unreasonable.

ANALYSIS [ 15 ] I will address the 2011 and 2013 Decisions together because they are substantially similar, and no party has suggested that there is any basis for the result to differ between the two. [ 16 ] The operative part of the 2013 Decision reads:

As it related to both issues,

Chapter VI,

Section 3,

Part 10.4 of the updated Alberta Natural Gas Royalty Guidelines 2009 (the “Guidelines”) stated that “The custom volumes must also include excess capacity volumes of the owners who are charged custom processing fees.” The Guidelines were clear that excess capacity owner volumes must have an associated Custom Processing Adjustment Factor (“CPAF”) for costs. This reporting requirement did not occur within the corresponding AC-2 filings and therefore this was a sufficient basis for the Department’s adjustment of these costs. In addition,

Section 37 of the Mines and Minerals Act , RSA 2000, c M- 17 (the “ Act ”) protects the Crown against an artificial reduction of royalty. As a co-owner, Paramount, and all other co-owners, may benefit disproportionately, even if this scenario did not apply to the Objection, when an operator doesn’t accurately file an AC-2 form to include a CPAF, as required. When this occurs facility owners may artificially inflate costs claimed in their AC-2 filings, reducing the royalty paid to the Crown inappropriately.

Section 37 of the Act protects the Crown from this type of artificial reduction in the Crown’s share of royalty. Accordingly, I concluded that the Department’s assessment of excess capacity fees…in the Assessment was correct. [ 17 ] The 2011 Decision was, in substance, identical. [ 18 ] In essence, the Minister’s Decisions treat the excess capacity costs claimed by Paramount as being strictly ineligible for deduction as a result of the omission of the corresponding CPAF in the SemCAMS AC2 form.

Unless there is a CPAF on the AC2 form, the producer is disqualified from claiming the Crown’s share of the custom processing fee. The Minister [3] confirms in this judicial review that the issue should be seen as one of eligibility. [ 19 ] While not fully articulated in the Decisions, the Minister’s concern about artificial reduction of the Crown’s royalty is understood by reference to the totality of the record, including the Department’s audit proposals, Paramount’s responses to the audit proposals and Paramount’s objections to the Minister.

The following points outlining the concern are summarized from the Minister’s written brief: In the AC2 form, a facility operator calculates the capital and operating costs incurred at the facility, identifies the facility’s owners and identifies each owner’s percentage ownership stake of the facility. This information facilitates allocation of potential allowable costs amongst the owners. [4] An owner’s share of allowable capital costs from the AC2 form flows through to that owner’s Crown royalty invoice if they are a royalty client of the Crown.

Each royalty client owner would receive a portion of their allocated share of the allowable capital costs as a deduction on their Crown royalty invoice, representing the Crown’s share of those capital costs. On the AC2 form, the operator must also report the identity of any persons who used the facility for custom processing and the amount of gas so processed.

Custom processing includes processing for a royalty client that has no ownership interest in the facility and processing for a royalty client with an ownership interest, but for quantities of gas that exceed the royalty client’s ownership share (excess capacity volumes). The excess capacity fee paid by an owner for processing over and above their ownership share includes coverage for the capital costs related to the excess capacity. The fee received is shared among all the owners to, in effect, compensate them for one owner using part of the other owners’ share of the capital assets.

Royalty clients can claim custom processing fees paid by way of the AC5 form. Again, a portion of those would be attributable to the Crown’s royalty share and deducted from the royalty invoice. To avoid the Crown being double charged for the same capital cost (once as a capital cost on the AC2 and once as a custom processing fee on the AC5), the AC2 form requires the operator to adjust for the percentage of the facility’s capital assets that are being used for custom processing, using the Custom Processing Adjustment Factor or CPAF.

The CPAF reduces the owners’ total capital costs on the AC2 form, given that they have recovered that amount in the form of the custom processing fee. The Crown reimburses the Crown share to the owner who paid the fee by way of the AC5 claim. [ 20 ] I have concluded that the Minister’s Decisions are unreasonable by reference to the totality of the context in which the Minister was operating. In particular: 1 . The 2011 and 2013 Decisions are not justified in the applicable statutory regime or even by reference to the Department’s own Guidelines. 2 .

The 2011 and 2013 Decisions do not grapple in any meaningful way with Paramount’s key objections to the Minister. The Guidelines [ 21 ] Starting with the Minister’s own explanation, the 2011 and 2013 Decisions refer to

Chapter VI,

Section 3,

Part 10.4 of the Guidelines and state in a more general way that the Guidelines were clear that excess capacity owner volumes required a CPAF.

Chapter VI,

Section 3,

Part 10.4 of the Guidelines is part of the “Completion Instructions’ for the AC2 form. It is clear that the facility operator, not the producer, is responsible for submitting the AC2 form.

Part 10 addresses the “Custom Processing Adjustment Factor Calculation for Operating Cost ” [emphasis added], with

Part 10.4 speaking specifically to custom volumes. I note that in the audit proposals, the Department referred to the Custom Processing Adjustment Factor Calculation for Capital Cost, for which details are set out in

Chapter VI,

Section 3,

Part 6 of the Guidelines. Nothing turns on the distinction for present purposes because in both cases (Part 10.4 and

Part 6.4), the Guidelines read as follows: “The custom volumes must also include excess capacity volumes of the owners who are charged custom processing fees.” [ 22 ] There has never been any dispute that the Guidelines called for SemCAMS as operator to calculate and report a CPAF for all custom processing volumes, including excess capacity volumes. There is also no dispute that SemCAMS submitted the required AC2 form but did not properly account for excess capacity volumes, including the CPAF. In other words, the references to the Guidelines in the 2011 and 2013 Decisions simply state an uncontested point.

They do not address the crux of Paramount’s objection, being the disqualification of all of the excess capacity costs incurred by Paramount as a result of the omission of an independent entity, SemCAMS. [ 23 ] The Minister’s reasons must be read in light of the history and context of the proceedings that led to the Decisions: Vavilov at

para 94 . In the Department’s audit proposals, the Department relied on

Section 3.3.2 of

Chapter VI of the Guidelines for the proposition that Paramount had “the responsibility of ensuring the accuracy of the CPAF filings such that any excess claims may be supported.”

Section 3.3.2 of

Chapter VI,

Section 3 of the Guidelines states that the operator’s capital cost allowance calculation is reduced by a CPAF to eliminate the capital cost allowances attributable to custom processing and explains how to calculate the capital cost allowance that may be allocated to royalty clients at an FCC after the CPAF.

Section 3.3.2 then continues: “FCC operators must calculate the CPAF annually via an appropriate version of the AC2. Supporting information must be reported on

Part 6 of the AC2 to substantiate the reported CPAF. FCC operators must keep track of the custom processing volumes to calculate the CPAF accurately.” [ 24 ] Assuming that

Section 3.3.2 formed part of the justification for the Minister’s decision, the cited provision cannot reasonably be interpreted as placing the onus on royalty clients to enforce operator compliance with the Department’s Guidelines or face disallowance of all fees paid to those operators. The stated responsibility of non-operator owners/producers according to

section 3.3.2 is more limited - to inform operators of all custom arrangements. There is no suggestion that Paramount failed to fulfill its obligation to inform SemCAMS. It is also noteworthy that the stated consequence in the Guidelines for an owner who fails to so inform the operator is that the owner may be subject to an audit assessment. It does not say that the owner’s excess capacity fees would all necessarily be ineligible for deduction.

And that scenario would involve the owner’s own omission. [ 25 ] While there are various references in the Guidelines to recalculations, penalties and other consequences for non-compliance, none of them speak to royalty clients strictly losing their opportunity to claim any excess capacity costs based on operator conduct. [ 26 ] The Minister argues that as a matter of policy, it should fall to owners such as Paramount to ensure that operators comply with their reporting duties through the use of contractual provisions or other business or private law mechanisms.

It should not be the responsibility of the Department using public resources. Paramount responds that the reporting requirements in issue form part of the regulatory scheme, and the Minister and the Department have regulatory authority over operators that will generally be more effective than the efforts of a non-operating producer with a small ownership interest, in an environment where standard form contracts are common.

I need not comment on this policy debate or whether the Minister could reasonably adopt such a policy, because whatever the Minister may now argue, this particular policy justification is not mentioned in the Decisions themselves and is not reflected in the Guidelines or the remainder of the record.

There is simply no evidence that the Minister ever adopted the policy now relied upon or that any such policy formed part of the reasoning for the Decision. [ 27 ] Similarly, the Minister’s brief for judicial review notes that the regulatory scheme in effect at the relevant period permitted operators and producers to amend their AC2 and AC5 reporting at any time up to December 31, four years after the end of the production year. For example, for the 2011 year, amendments could have been made until the end of 2015.

The Minister also argues that the Department prepares reports by which Paramount ought to have been aware of the SemCAMS error and taken steps to require SemCAMS to amend the AC2 form. Again, this is not a ground relied upon in the Decisions themselves and in any event, Paramount’s uncontradicted information on the record is that it made the appropriate efforts to bring the reporting failure to the attention of SemCAMS but ultimately does not control SemCAMS’ response.

It is also worth noting that the Department notified Paramount of the 2011 audit on December 11, 2015, and the 2013 audit on October 30, 2017, very close to the end of the amendment period in each case. [ 28 ] In sum, the Minister’s Decisions are based on an unreasonable

interpretation of the Guidelines. The references to the Guidelines in the Decisions do not justify treating Paramount’s claim to recover the Crown’s share of excess capacity fees as conditional on the inclusion of a CPAF in the operator’s AC2 form, nor do they address Paramount’s objection that it was being required to pay almost $1.7 million in additional royalties due to an error by an independent entity. [ 29 ] For clarity, neither Paramount nor the court questions the reasonableness of using the AC2 and AC5 forms as a mechanism to try to avoid the Crown being charged twice for the same cost.

However, there is a difference between the reporting obligation, or even an audit based on the reports, and the disqualification of the producer’s entire claim for costs based solely on the operator’s reporting omission. The Guidelines do not support the latter. [ 30 ] There is one provision in the Guidelines that links eligibility of custom processing fees, including excess capacity costs, to accurate AC2 reporting.

Chapter VI,

Section 5,

Section 5.1.3 of the Guidelines is headed “Eligible Custom Process Fees. It reads: Eligible custom processing fees paid are arm’s-length fees paid by the royalty client in Alberta: For compressing, gathering or processing services at an AER facility in which the royalty client has no ownership interest, or To co-owners of an FCC, in which the royalty client has an ownership interest, for the quantity of gas and gas products processed that exceed the royalty client’s ownership share (these fees must be defined clearly in writing in the partnership or joint venture agreement).

Owner excess volumes must be reported accurately in the AC2 CPAF form. [emphasis added] [ 31 ] I am satisfied that this line, which does not speak to the consequence of a failure to accurately report in the AC2, and which was not referenced by either the Department in the audit proposals or by the Minister in the 2011 or 2013 Decisions, does not provide Guideline justification for the Minister’s Decisions. This is particularly so, when the role of the Guidelines and their place in the overall legislative scheme is considered as follows.

The Legislative Scheme [ 32 ] The Act and the Royalty Regulation do not include details on excess capacity fees or CPAFs. They leave significant discretion to the Minister with respect to the costs and allowances to which the Minister will consent: see in particular Act s 36(2)(

f) and Royalty Regulation, ss 1(6) and 18. However, they do not grant the Minister untrammelled discretion to consent or not consent to any particular claim for costs without regard for the statutory scheme or based on an unreasonable

interpretation of that scheme: Vavilov at paras 108, 120 . The Guidelines must be considered in light of the Act and the Royalty Regulation.

[ 33 ] The Act and the Royalty Regulation remind us that the context for the AC2, the AC5, the CPAF, and related requirements under the Guidelines, is the Crown paying its share of natural gas processing costs: Act , s 36(2)(

f) and Royalty Regulation, ss 18(2) and 18(3). Subsection 18(14) of the Royalty Regulation specifically requires a royalty client to report custom processing fees. In other words, the Royalty Regulation itself contemplates producers being able to claim custom processing fees from the Crown. Excess capacity fees are a type of custom processing fee. It is noteworthy that subsections 18(12) and 18(14) of the Royalty Regulation contemplate separate reporting by facility operators and royalty clients. This generally points away from a producer losing its entire costs claim due to a reporting error by an operator. [ 34 ] Provisions such as

section 37 of the Act and 16(2) of the Royalty Regulation refer to recalculations of royalties to avoid artificial or undue reductions to the Crown royalty or to avoid financial prejudice to the Crown. These reflect a general focus in the statutory scheme on keeping the Crown whole, as opposed to strict ineligibility of costs claims due to reporting omission, particularly by another party. [ 35 ] The Decisions refer to

section 37 of the Act as protecting the Crown from even hypothetical artificial reductions in the Crown’s royalty share: In addition,

Section 37 of the Mines and Minerals Act , RSA 2000, c M-17 (the “ Act ”) protects the Crown against an artificial reduction of royalty. As a co-owner, Paramount, and all other co-owners, may benefit disproportionately, even if this scenario did not apply to the Objection, when an operator doesn’t accurately file an AC-2 form to include a CPAF, as required. When this occurs facility owners may artificially inflate costs claimed in their AC-2 filings, reducing the royalty paid to the Crown inappropriately.

Section 37 of the Act protects the Crown from this type of artificial reduction in the Crown’s share of royalty. [emphasis added] [ 36 ] With respect, the Minister’s reasoning on

section 37 of the Act ignores the plain wording of that provision, and amounts to an unreasonable

interpretation, inconsistent with the modern approach to statutory

interpretation.

Section 37 speaks to actual results: 37 If, in the opinion of the Minister, the result of one or more acts, agreements, arrangements, transactions or operations is to artificially or unduly reduce (

a) the Crown’s royalty share in respect of a mineral, (

b) the amount owing on account of a money royalty, (

c) the amount owing in respect of the disposal of the Crown’s royalty share by an agent, or (

d) the amount owing on account of royalty compensation, the royalty share or the amount owing shall be calculated as if the act, agreement, arrangement, transaction or operation had not taken place. [emphasis added] [ 37 ] Paramount acknowledges that the absence of an accurate CPAF on the AC2 form could result in the Crown being double charged.

However, in its submissions to the Department in the course of the audits, and in its objections to the Minister, Paramount included detailed information and calculations that, on their face, show the Crown’s actual exposure as a result of the SemCAMS CPAF omission to be no more than $800,000 in 2011 and less than $6000 in 2013. In part, this was because SemCAMS had not made any capital cost claim on the AC2 for a number of FCCs. In other words, there could be no double-counting with the AC5 in those cases.

Paramount further refined the Crown’s maximum exposure calculation to approximately $290,000 in its brief for judicial review, to approximately $242,000 in its reply brief and to $240,535.94 in oral argument. [5] Paramount calculates its own net benefit to be only $706.65 [6] , with the remainder of the potential $240,535 benefit spread across the other producers processing gas at the SemCAMS facilities.

Since SemCAMS is not a producer, it does not pay royalties and there is no suggestion that SemCAMS itself received any financial benefit at the Crown’s expense. [ 38 ] While the Minister does not accept SemCAMS’ calculations for the purposes of judicial review, there is no information on the record to the contrary and the Minister did not address the Crown’s actual loss or Paramount’s actual gain in the Decisions. [ 39 ] In my view, it was not open to the Minister to invoke

section 37 of the Act without considering the actual impact on the Crown of Paramount’s claim for the excess capacity fees in light of the state of SemCAMS’s AC2 reporting. In ignoring this factor, the Minister proceeded on an unreasonable

interpretation of the legislative scheme, including

section 37 of the Act , and the Minister unreasonably failed to grapple with this important component of Paramount’s objections: Vavilov at para 128 . [ 40 ] The Minister unreasonably relied on

section 37 as an additional basis for upholding the Notices of Determination. Further,

section 37, reasonably interpreted, undermines the first ground articulated by the Minister for upholding the Department’s assessment of Paramount’s costs claim (i.e., that under the Guidelines, the SemCAMS reporting error rendered all of Paramount’s excess capacity fees ineligible for deduction). As set out above, provisions such as

section 37 of the Act and section 16(2) of the Royalty Regulation reflect a general focus in the statutory scheme on actual prejudice to the Crown, which does not support the Minister’s

interpretation of the Guidelines. Paramount’s penalty argument [ 41 ] Paramount argues that under the regulatory regime, if either SemCAMS or Paramount had committed deliberate fraud in their reporting, the maximum penalty would be a fine of no more than $100,000, or the amount of royalties the Crown lost as a result, whichever is greater: Act , s 63(2). Paramount also points to other penalty provisions such as sections 27(1) and 28 of the Royalty Regulation.

Paramount characterizes the approximate $1.7 million impact of the Minister’s Decisions on Paramount as a penalty in excess of what is authorized by the Act , particularly in circumstances where the Crown’s maximum royalty loss was much less. The Minister points to provisions in the legislative scheme that clearly distinguish between recalculations and penalties: for example, see ss

38(7) and 38(8) of the Act . [ 42 ] Given my conclusion that the Minister’s Decisions are unreasonable on other grounds, I need not decide whether they amount to an unauthorized penalty.

However, the inclusion of actual impact to the Crown as a relevant factor in section 63(2) of the Act and section 28(1) of the Regulation, and the quantum of contemplated penalties in the regulatory scheme as a whole, as compared to the amount assessed as owing by Paramount in this case, supports the conclusion that in the context of the statutory scheme as a whole, the Minister’s treatment of Paramount’s costs claim as ineligible on the basis of SemCAMS’ AC2 form alone, and the Minister’s refusal to consider the actual impact of the circumstances on the Crown and Paramount, was unreasonable.

REMEDY [ 43 ] For the foregoing reasons, the 2011 Decision and the 2013 Decision are both set aside. [ 44 ] Paramount argues that along with setting aside the Decisions, I should direct the Minister to return the $1,659,960 that was taken from Paramount’s account when the excess capacity fees claimed on the AC5 were disallowed. [7] In the alternative, Paramount argues that I should vary the Minister’s denial of excess capacity fees to $706.65 (the royalty benefit to Paramount) and direct the Minister to return the remainder of the $1,659,960 to Paramount.

In its original argument, Paramount also suggested that in the further alternative, I could limit the denial of excess capacity fees to $290,443 (since amended to $240,535.94, being Paramount’s calculation of the maximum royalties the Crown could have lost as a result of the SemCAMS error), though this was not emphasized in the reply brief or in oral argument. [ 45 ] The Minister argues that if there was a reviewable error, the appropriate remedy is to remit the matter to the Minister. [ 46 ] When an administrative decision is set aside, most often it is appropriate to remit the matter to the decision-maker for reconsideration with the benefit of the court’s reasons: Vavilov at para 140-141 . [ 47 ] In my view, the matter should go back to the Minister.

I am not convinced that there is a single inevitable result, which is underscored by Paramount’s alternative submissions to the court on remedy. The administration of justice does not otherwise require me to decide the specific result before the Minister has done so.

Further, the Minister is better placed to review and evaluate Paramount’s calculations. [ 48 ] Accordingly, the matters are remitted to the Minister. [ 49 ] One of Paramount’s arguments was that the matter would only have to be remitted if I decided that Paramount must bear the full burden of the Crown’s loss, notwithstanding that Paramount received very little of the corresponding benefit. In that case, the Minister would have to calculate the Crown’s actual lost royalties.

In light of that argument, I want to be clear that I am not making that finding and I disagree with Paramount that the need to remit is contingent on such a finding. Because the Minister treated Paramount’s excess capacity fees as ineligible for deduction, the Minister has never decided how to otherwise deal with Paramount’s claim, whether by way of

section 37 or 38 of the Act or otherwise. I find that allowing the Minister the opportunity to make that decision is most consistent with the role of the Minister in the statutory scheme and the court’s role on judicial review. In so doing, I make no advance finding that the Minister has, or does not have, jurisdiction to make any particular finding, nor that any particular finding would be reasonable or unreasonable.

The role of the court on judicial review is to review decisions that have already been made, not those that have not yet been made. [ 50 ] If the parties are unable to agree on costs, they may write to my office within 45 days of the date of this decision to advise of the nature of their dispute, and I will set a process for determining costs. Heard on the 3 rd day of March, 2023. Dated at the City of Calgary, Alberta thi s 31st day of January, 2024 . April Grosse J.C.K.B.A. Appearances: John A. Legge Gall Legge Grant Zwack LLP

for the Applicant Doreen Mueller, KC and Shaheer Meenai Alberta Justice for the Respondents