Canada: Alberta Court Of Appeal Grants Intervener Status To Four Participants In Appeal Of Re Redwater Energy Corp.

Last Updated: August 19 2016
Article by Matti Lemmens

Most Read Contributor in Canada, September 2016

The much-debated and closely-monitored Re Redwater Energy Corp. litigation (we previously posted about  Bulletin 2016-10 Bulletin 2016-21, the  decision, and the  impact outside of Alberta) is now proceeding through appeal. The latest development in this proceeding is that a number of industry participants have sought and obtained permission to intervene in the Appeal.

In Orphan Well Association v Grant Thornton Limited, 2016 ABCA 238 ("Orphan Well v Grant Thornton"), the Canadian Association of Petroleum Producers ("CAPP"), the Canadian Association of Insolvency and Restructuring Professionals ("CAIRP"), the Attorney General for Saskatchewan ("Province of Saskatchewan") and Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Natural Gas Development and the British Columbia Oil and Gas Commission ("Province of BC") sought leave to intervene with respect to constitutional issues regarding the interpretation of federal and provincial legislation, the division of legislative powers and the doctrine of paramountcy. The Alberta Court of Appeal granted permission to intervene to all four entities.


This is an appeal from the decision of Re Redwater Energy Corp., 2016 ABQB 278 ("Re Redwater"). We have previously reported on that decision.

Test for Permission to Intervene

The Court of Appeal clarified the test for permission to intervene in an appeal. The authority to grant permission to intervene and impose conditions on the intervention arise from rules 14.37(2) and 14.58 of the Alberta Rules of Court, AR 124/2010. Following Papaschase Indian Band (Descendants of) v Canada (Attorney General), 2005 ABCA 320, a two-step approach should be used to determine whether leave should be granted:

  1. the court will consider the subject matter of the proceeding;
  2. the court will determine the intervener's interest in that subject matter.

When determining the intervener's interest in the second branch of the test, the Court should consider:

  1. whether the intervener will be directly and significantly affected by the appeal's outcome; and
  2. if the intervener will provide some expertise or fresh perspective on the subject matter that will be helpful in resolving the appeal.

The Court clarified that in order to grant leave, both criterion in relation to the intervener's interest must be met – simply having an affected interest is not enough to grant leave. A fresh perspective or special expertise in relation to the subject matter is required.

The Court followed Pedersen v Alberta, 2008 ABCA 192, which set out relevant factors to be considered in determining whether to grant intervener status:

  1. Will the intervener be directly affected by the appeal;
  2. Is the presence of the intervener necessary for the court to properly decide the matter;
  3. Might the intervener's interest in the proceedings not be fully protected by the parties;
  4. Will the intervener's submission be useful and different or bring particular expertise to the subject matter of the appeal;
  5. Will the intervention unduly delay the proceedings;
  6. Will there possibly be prejudice to the parties if intervention is granted;
  7. Will intervention widen the lis between the parties; and
  8. Will the intervention transform the court into a political arena?

The Court of Appeal clarified that interveners should be allowed when they will significantly add to the complex constitutional issues, especially ones which have serious and wide-ranging policy implications. Further, the Court of Appeal strongly encouraged that interveners follow rule 57(2) of the Rules of the Supreme Court of Canada, SOR/83-74, which requires applicants to identify the position the intervener intends to take and set out the submissions to be advanced, the questions on which the applicant proposes to intervene, the intervener's relevance to the proceeding and the reasons why the intervener believes its submissions will be different from other parties and therefore useful to the Court.


Following the Pedersen factors, the Province of BC laid out its arguments for leave to intervene in support of the Appellants. The Court of Appeal found that the Province of BC would have an interest which would be directly and significantly affected by the outcome of the Appeal. Further, the Province of BC would bring an extra-provincial perspective; however, it would not be entitled to widen the lis by explaining the differences between British Columbia and Alberta legislation. Overall, the Court of Appeal found they met the criteria for permission to intervene.

CAPP sought intervention in favour of the Appellants. CAPP argued that it is a key player in the oil and gas industry as it is the primary source of funding for the Orphan Well Fund and the Alberta Energy Regulator; therefore the Appeal directly affects CAPP's members. CAPP argued that it has special expertise in relation to the oil and gas industry, and could provide perspective on public interest considerations, which would be broader than the arguments of the Appellants. The Court of Appeal found CAPP met the criteria for permission to intervene.

The Court of Appeal also granted intervener status to the Province of Saskatchewan. Firstly, Saskatchewan has legislative provisions similar to Alberta. If the trial decision is upheld, it would negatively affect Saskatchewan's orphan well program, oil and gas industry and taxpayers. Secondly, the Province of Saskatchewan would bring a fresh perspective on common law bankruptcy principles focusing on the principle that bankruptcy proceedings should not place a creditor in a better position than it would have been in absent the proceedings. Lastly, the Province of Saskatchewan would address broader constitutional issues, such as co-operative federalism and interjurisdictional immunity.

Lastly, CAIRP was granted intervener status as it is a professional association representing receivers, trustees, agents, monitors and consultants in the insolvency field and is uniquely positioned to provide insight on insolvency and restructuring. CAIRP also has expertise on the interplay of provincial regulatory legislation and federal insolvency legislation. The Court of Appeal found that CAIRP will be able to assist the Court with the practical outcomes of the policy decisions to be heard.


As a result of the foregoing interveners being granted intervener status in this Appeal, the Court of Appeal will have a more fulsome understanding of the context and implications to industry from additional stakeholders that may not have been available to the lower Court, where there were no interveners. These perspectives are expected to supplement the important policy debate that the Court of Appeal faces in this Appeal.

Of note, despite one of the relevant factors that the courts consider in determining whether to grant intervener status being whether permitting an intervener to participate will result in the court turning into a political arena, that does not appear to have factored heavily into the analysis of the Court of Appeal in granting intervener status to these industry participants.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.