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Alberta Don’t You Treat Me Unkind – Gonna Change My Way of Thinking

In 2017, the Alberta Court of Appeal upheld the lower court’s decision that the BIA (Bankruptcy and Insolvency Act) prevailed over a conflicting provision in the provincial regulations promulgated by the Alberta Energy Regulator (AER). In our blog posts about the appellate ruling and the lower court’s decision, we announced that the decision was a boon for Canadian oil and gas lenders, but our optimism was tempered by an *asterisk* because the issue might not be settled “until the Canadian Supremes ultimately sing.”

We were right to “feel a change comin’ on” because, in this case, “there’s only one authority and that’s the authority on high” (the Supreme Court of Canada). On January 31, 2019, the Canadian Supremes sang with the conciseness of Dylan. The Court’s decision in Orphan Well Association closes the curtain on the final act, placing the liability on the bankruptcy estate of Alberta’s Redwater Energy Corporation (“Redwater”) for the decommissioning and cleanup of abandoned drilling sites.

The core issue on consideration was whether section 14.06(4) of the Canadian Bankruptcy and Insolvency Act (“BIA”), permitting the trustee to disclaim abandoned wells to protect itself from personal liability, conflicted with AER provincial regulations imposing environmental liabilities on the estate in connection with such assets. Unlike the courts below, the Court found no conflict existed between the BIA’s priority scheme and limitation of the court-appointed trustee’s personal liability from public obligations of the bankrupt estate under provincial law.

AER sought to enforce provincial regulations requiring Redwater to pay remediation liabilities associated with abandoned wells to prevent the public from shouldering the costs. In so doing, AER acted in its bona fide regulatory capacity and “not [as] a creditor of the . . . corporation.” Redwater’s environmental obligations were a public “duty” and not dischargeable as claims under the BIA. Accordingly, such duties lie outside the BIA’s priority scheme and have no effect on trustee protections. Although the trustee could not be held personally liable for such expenses under the BIA, such regulatory obligations must be satisfied from the estate before distributions to creditors.

“After so much oppression,” AER finally prevailed.  The “authority on high” “changed its way of thinking” and made “a different set of rules.” Contrary to the prior decisions of the lower courts, the final Redwater decision makes clear that the liability for managing and remediating abandoned wells remains with the insolvent enterprise and, effectively, its secured lenders. The Court cautioned that “[b]ankruptcy is not a license to ignore rules, and insolvency professionals are bound by and must comply with valid provincial laws during bankruptcy.”

Accordingly, lenders currently secured by Canadian O&G assets should take into account any provincial environmental liabilities in calculating asset value. Moreover, potential secured lenders documenting new facilities should consider regulatory obligations when drafting asset coverage ratios and other collateral- or reserve-based covenants and requirements. Finally, given the Supreme Court made it clear that the regulatory requirements did not force Redwater to satisfy obligations with assets unrelated to the “end-of-life obligations,” debtors and creditors may consider structures that would ring-fence unrelated assets from such liabilities, either retrospectively or prospectively.

© 2019 Bracewell LLP


About this Author

David L. Lawton, financial restructuring, lawyer, Bracewell law firm

David Lawton is a member of the firm's Financial Restructuring team. Mr. Lawton's practice focuses on the representation of hedge funds, institutional investors, fund managers and other lenders and equity groups in complex workouts, insolvency proceedings, and litigation in U.S. and international corporate restructurings with particular emphasis on Australian workouts. Mr. Lawton has worked in a variety of sectors. His industry highlights include tribal gaming, agribusiness and real estate. Mr. Lawton has also assisted corporate clients with mergers and acquisitions,...

Shannon Wolf, Bracewell Law Firm, Financial Restructuring and Litigation Attorney

Shannon Wolf counsels clients in domestic and international restructuring and insolvency matters, including creditors, debtors and acquirers. She represents ad hoc and official creditor committees and groups in connection with out-of-court workouts and Chapter 11 proceedings. Shannon’s experience includes representing clients in complex commercial litigation in federal and state courts, as well as regulatory enforcement defense and internal investigations for corporate and institutional clients.

Prior to joining Bracewell, Shannon served as a law clerk to the Honorable Peter W. Hall of the United States Court of Appeals for the Second Circuit, and the Honorable Stefan R. Underhill for the United States District Court for the District of Connecticut. During law school, she served as a judicial intern for the Honorable Janet C. Hall of the United States District Court for the District of Connecticut.