Executive Summary: Key Legal and Evidentiary Issues

• ENMAX Power Corporation seeks permission to appeal a costs decision awarding Remington Development Corporation solicitor-client costs of over $2.5 million plus expert fees.

• Interpretation of s 25(1)(b) of the Surface Rights Act is central to both the substantive and costs appeals, particularly whether compensation extends beyond the Subject Lands to include "Interlinked Lands."

• The chambers judge ordered ENMAX to compensate Remington with a one-time payment of $11,078,123 plus interest of $794,715.98, which ENMAX contests as based on a novel and unconventional compensation analysis.

• Disputed determination of whether Remington was "substantially successful" in the lower court appeals drives the application of the costs provisions under s 26(9)(a) and (b) of the Act.

• Statutory interpretation of the cost provisions carries broad significance for landowners and utilities operating under Alberta's Surface Rights Act.

• Permission to appeal the costs decision was granted and conjoined with the already-permitted substantive appeal to be heard by the same panel.

The underlying dispute between Remington and ENMAX

This case arises from a compensation dispute under Alberta's Surface Rights Act between Remington Development Corporation, a landowner, and ENMAX Power Corporation, an operator. The dispute originated before the Land and Property Rights Tribunal, which issued a compensation order in 2022. Dissatisfied with the Tribunal's decision, both parties appealed to the Court of King's Bench — ENMAX seeking a lower compensation amount and Remington seeking a higher one.

The chambers judge's substantive decision

On September 15, 2025, the chambers judge issued the substantive decision on the merits, ordering that ENMAX compensate Remington by making a one-time payment of $11,078,123 under s 25(1)(b) of the Act, plus interest of $794,715.98. The chambers judge's approach was notably expansive: he found that compensation under s 25(1)(b) was not restricted to the "Subject Lands" alone but extended to include compensation for losses related to the delayed development of the entirety of the "Interlinked Lands." ENMAX characterized this as a novel and unconventional compensation analysis resting on what the chambers judge described as "extremely unique (indeed, entirely unprecedented) factual circumstances." ENMAX says that was a product of a misunderstanding of the interpretation and application of the Act.

Permission to appeal the substantive decision

ENMAX sought and was granted permission to appeal the substantive decision to the Court of Appeal of Alberta on December 4, 2025. The permitted ground was narrow: the chambers judge's interpretation of s 25 of the Surface Rights Act, including his finding that compensation under s 25(1)(b) was not restricted to the Subject Lands and included compensation for losses related to the delayed development of the entirety of the Interlinked Lands, as a question of statutory interpretation. Permission to appeal various fact findings made by the chambers judge was denied, and Remington's application to cross-appeal alleging that compensation was also owing under ss 25(1)(c) and (d) of the Act was also denied.

The costs decision and the amounts at stake

Following the substantive ruling, the parties returned before the chambers judge on the matter of costs. On February 19, 2026, the chambers judge awarded Remington solicitor-client costs of both appeals before the chambers judge. Rather than fixing a specific quantum, the judge invited the parties to rely upon his reasons for decision in determining whether they could reach agreement on actual quantum. The parties entered into an agreement to attempt to quantify costs, with a proviso preserving each party's rights, benefits, and privileges with respect to the appeal to the Court of Appeal as it relates to costs. As a result of that agreement, ENMAX paid solicitor-client costs to Remington of $2,528,771.80, plus expert fees of $544,203.74 on March 24, 2026. These amounts were in addition to the fees awarded by the Land and Property Rights Tribunal of $1,051,150.67.

The statutory framework governing costs

Central to this application are the cost provisions in s 26(9) of the Surface Rights Act. Under s 26(9)(a), when the appeal is by the operator, costs are payable by the operator on the basis of the lawyer's charges to the client regardless of the result of the appeal, unless the Court finds special circumstances to justify it to award costs on any other basis. Under s 26(9)(b), when the appeal is by the owner or occupant, the outcome matters: if the appeal is successful, costs are payable by the operator on the basis of the lawyer's charges to the client; if the appeal is unsuccessful, costs are payable on the basis of any costs incurred in the proceeding determined under the Alberta Rules of Court to the party, if any, that the Court in its discretion may direct. These cost provisions were intended as "a protection for landowners for what in substance amounts to an expropriation of surface rights from a landowner by an operator ... who has a right to exercise entry."

ENMAX's arguments for permission to appeal the costs decision

ENMAX advanced several grounds. It argued that the costs appeal is intimately connected to the substantive appeal; whatever decision is made by the panel in the substantive appeal under s 25(1)(b) will specifically inform costs under ss 26(9)(a) and (b). If ENMAX succeeds on the substantive appeal, the question of whether Remington was wholly or substantially successful in its appeal before the chambers judge would need to be reassessed, determining whether s 26(9)(b)(i) or (ii) applies. ENMAX noted it has already paid the costs award to Remington, and it would be important to know if all or any of that would need to be repaid. ENMAX also contended that the chambers judge erred independently in the costs decision by finding that Remington was substantially successful in the appeals before the chambers judge, saying he failed to properly consider the proportionality and reasonableness of the costs award and failed to properly interpret the Act in awarding solicitor-client costs. Additionally, ENMAX argued that it would have been entitled to appeal the costs decision at the same time it appealed the substantive decision without further permission to appeal, had the costs decision been issued with or before the substantive permission to appeal was granted. The delayed timing of the costs decision should not affect its right to appeal when the costs decision is so necessarily linked to the substantive decision.

Remington's response

Remington maintained that the costs were appropriate because ENMAX had advanced an entirely new theory of damages and called extensive expert evidence in support of that new theory in the hearing before the chambers judge. Remington said it was clearly the successful party: it appealed seeking a higher compensation award, ENMAX appealed seeking a lower compensation award, and the chambers judge increased the amount of the compensation awarded by the Land and Property Rights Tribunal. It said it was successful on its own appeal and successfully defended ENMAX's appeal. Remington further argued that even if ENMAX is successful on appeal, it will not be entitled to reimbursement for the costs of the appeals before the chambers judge unless the court finds special circumstances to justify a costs award on any other basis than presumptive solicitor-client costs — and the chambers judge found no special circumstances. Remington also raised the practical concern that there would be no record upon which the Court of Appeal could base a determination of quantum, since the chambers judge did not make an assessment regarding quantum but left that determination to the parties, which was concluded on the basis of the without-prejudice agreement.

The ruling and outcome

Justice Kevin Feehan of the Court of Appeal of Alberta applied the test for leave to appeal under the Surface Rights Act, as set out in Ranger Oil Limited v Ferguson and adopted by Imperial Oil Resources v 826167 Alberta Inc: leave should be granted if one or more grounds of appeal has a reasonable prospect of success and that success would have a significant impact on the parties, and leave should also be granted where the appeal raises a question of law or procedure of importance to the operation of the Act. On the submissions made, the Court found there is a reasonable prospect of success for the ENMAX costs appeal if it is successful on the substantive decision; it cannot be said the costs appeal is frivolous, vexatious, or unlikely to succeed. The dollar figures themselves indicate a significant impact on the parties. The Court also found the costs appeal will address questions of law of importance in the interpretation of the Act, and therefore in the operation of the Act. The application was granted, and ENMAX was given permission to advance the costs appeal, conjoined with the substantive appeal to be heard by the same panel at the same time. No specific monetary award was made in this decision, as it dealt solely with the threshold question of whether ENMAX could bring the costs appeal forward.