Federal Court of Appeal hears three cases involving oilfield service company

This week, the Federal Court of Appeal dealt with competition law and patent infringement cases involving oil and gas companies, as well as income tax and access-to-information matters. The Federal Court handled a case arising from a retaliation complaint.

Federal Court of Appeal

The appellate court heard Secure Energy Services Inc. v. The Commissioner of Competition, A-89-23 on Monday. The appellant, Secure Energy Services Inc., was a Calgary-headquartered midstream oil and gas infrastructure company. It acquired Tervita Corporation through a March 2021 agreement.

The commissioner of competition applied to dissolve the transaction and to require Secure to dispose of certain assets. The Competition Tribunal partly granted the application and ordered Secure to divest 29 midstream infrastructure facilities.

On appeal, Secure alleged that the tribunal misinterpreted s. 96 of the Competition Act, 1985 and denied it an opportunity to know the case that it had to meet relating to the suitability of the proposed remedy.

The tribunal made palpable and overriding factual errors, made unsupported findings, impermissibly conducted its own expert analysis, ignored key evidence, and inconsistently applied the standard of proof, Secure said.

Secure was also involved as a respondent in the cases of Mud Engineering Inc. v. Secure Energy Services Inc., A-136-22 and Mud Engineering Inc. v. Secure Energy Services Inc., A-177-22, which the appellate court heard on Tuesday.

Mud Engineering Inc. was the registered owner of two patents covering “encapsulating drilling fluids,” which aimed to reduce the accumulation or sticking of bitumen on drilling equipment, partly by inhibiting or preventing the dispersion of bitumen particles throughout the fluids.

It sued the respondent for patent infringement. The respondent allegedly infringed the Mud Engineering patents by using and selling certain drilling fluid compositions for the purpose of drilling oil wells in Western Canada’s oil sand deposits.

On Tuesday, the appellate court heard Triskelion Projects International Inc. v. His Majesty the King, A-184-22, which challenged the Tax Court of Canada’s dismissal of an appeal from an income tax assessment. The appellant alleged that the Tax Court wrongly applied domestic laws and the Canada-United States Convention with Respect to Taxes on Income and on Capital, signed in 1980.

The appellate court heard another income tax matter on Wednesday. In Bonnybrook Park Industrial Development Co Ltd v. Minister of National Revenue, A-47-22, the appellant asked the Canada Revenue Agency for the refund of dividends and for the waiver or cancellation of interest and penalties based on the health issues of its principal.

The Minister of National Revenue denied the request for administrative relief. The Federal Court ruled against the appellant, which prompted it to appeal. The appellant alleged that the Federal Court judge’s decision was incorrect and unreasonable.

Also on Wednesday, the appellate court heard Kathryn Chin v. Attorney General of Canada, A-99-22. This arose from a request for information from the Canadian Security Intelligence Service about a technological device that an unknown actor placed on the appellant. The Federal Court rejected the request.

The appellant alleged that the Federal Court committed errors when it classified the information sought as exempt from disclosure, rejected the appellant’s constitutional challenge, and failed to apply s. 46(1) of the Privacy Act, 1985.

Federal Court

The court heard Daniel Kohl v. Attorney General of Canada, T-2135-22 on Tuesday. A constable was the subject of a conduct investigation. The constable allegedly acted discourteously by failing to inform his supervisor, a sergeant, of a meeting that he had arranged between the sergeant and a member of the public.

The constable claimed that the conduct adjudicator for the Royal Canadian Mounted Police wrongly held that the fresh evidence introduced on appeal was inadmissible and that a reasonable person knowing the context would find no reasonable apprehension of bias on the part of the Conduct Board.

On Tuesday, the court heard Gilbert Bigio v. The Governor General in Council, T-122-23, which arose when the Governor General in Council added the applicant’s name to the Schedule of the Special Economic Measures (Haiti) Regulations SOR/2022-226, pursuant to the Regulations Amending the Special Economic Measures (Haiti) Regulations SOR/2022-280.

The applicant alleged that he did not get a hearing or an opportunity to respond, to participate, or to intervene before the making of the decision to add his name. There was no reasonable basis for the addition, the applicant said.

Also on Tuesday, the court heard Shelley Whitelaw v. Attorney General of Canada, T-1910-22. The Canadian Human Rights Commission dismissed the applicant’s retaliation complaint. The applicant alleged that the investigation was insufficient and that the tribunal wrongly interpreted and applied s. 43(3)(b)(i) of the Canadian Human Rights Act, 1985.