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ARTICLE · 01 SEPTEMBER 2008

Key Right Of First Refusal Provision “Ambiguous”: Case Sent Back For More Evidence

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On August 5, 2008, the Alberta Court of Appeal issued a decision of significance and concern to the oil and gas industry in Canada.

CanadaEnergy and Natural Resources
Blake, Cassels & Graydon LLP
Blake, Cassels & Graydon LLP
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Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Energy - Oil & Gas/Litigation, August 2008

On August 5, 2008, the Alberta Court of Appeal issued a decision of significance and concern to the oil and gas industry in Canada. The decision of the majority in Canadian Natural Resources Ltd. v. EnCana Oil and Gas Partnership was written by Madam Justice Conrad, and concurred in by Mr. Justice Costigan. Mr. Justice Berger dissented.

The decision is interesting at many levels, particularly (a) the majority's finding that the Right of First Refusal (ROFR) clause in the 1990 CAPL Procedure, widely in use in the oil and gas industry, is ambiguous, and (b) the very different views of the majority and Mr. Justice Berger with respect to the role of the appellate court as to whether it should decide cases based on the evidentiary record before it.

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