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Pl FRK of THF COURT P.l FRK OF THF COURT FILED COURT FILE NUMBER 1801-10960 SEP 2 8 2020 COURT COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL CENTRE OF CALGARY JUDICIAL CENTRE CALGARY PLAINTIFF PRICEWATERHOUSECOOPERS INC., LIT, in its capacity as the TRUSTEE IN BANKRUPTCY OF SEQUOIA RESOURCES CORP. and not in its personal capacity DEFENDANTS PERPETUAL ENERGY INC., PERPETUAL OPERATING TRUST, PERPETUAL OPERATING CORP. and SUSAN RIDDELL ROSE ORPHAN WELL ASSOCIATION, CANADIAN NATURAL RESOURCES INTERVENORS LIMITED, CENOVUS ENERGY INC. and TORXEN ENERGY LTD. DOCUMENT BRIEF OF THE DEFENDANTS PERPETUAL ENERGY INC., PERPETUAL OPERATING TRUST and PERPETUAL OPERATING CORP. (the Perpetual Energy Defendants) IN RESPONSE TO INTERVENORS' BRIEFS before The Honourable Justice D.B. Nixon on October 1-2, 2020 ADDRESS FOR SERVICE AND Burnet, Duckworth & Palmer LLP CONTACT INFORMATION OF 8th Avenue Place, East Tower PARTY FILING THIS 2400, 525 - 8 Avenue SW DOCUMENT Calgary, Alberta T2P 1G1 Lawyers: D.J. McDonald, Q.C./Paul G. Chiswell/ Michael S. Deyholos Phone: (403) 260-5724/(403) 260-0201/ (403) 260-0156 Fax: (403) 260-0332 Email: [email protected]/[email protected]/ [email protected] File No.: 59140-43 Counsel for the Perpetual Energy Defendants De Waal Law 1460 Watermark Tower 530 - 8 Avenue SW Calgary, Alberta T2P 3S8 Lawyers: Rinus de Waal/Luke Rasmussen Phone: (403) 266-0013/(403) 266 0014 Fax: (403) 266-2632 Email: [email protected]/[email protected] Counsel for the Plaintiff PricewaterhouseCoopers Inc., LIT, in its capacity as the Trustee in Bankruptcy of Sequoia Resources Corp. and not in its personal capacity (Trustee) Bennett Jones LLP 4500 Bankers Hall East 855 - 2 Street SW Calgary, Alberta T2P 4K7 Lawyers: Kenneth T. Lenz, Q.C./Andrea Stempien Phone: (403) 298-3317/(403) 298-3148 Fax: (403) 265-7219 Email: [email protected]/[email protected] Counsel for the Orphan Well Association (OWA) Parlee McLaws LLP 3300, 421 - 7 Avenue SW Calgary, Alberta T2P 4K9 Lawyers: G. Scott Watson/Charles W. Ang/Kaitlin A. Gramlich/Samuel Ko Phone: (403) 249-7038/(403) 249-3457 Fax: (403) 767-8875 Email: [email protected]/[email protected]/[email protected]/[email protected] Counsel for Canadian Natural Resources Limited, Cenovus Energy Inc. and Torxen Energy Ltd. (Industry Intervenors) TABLE OF CONTENTS I. OVERVIEW ........................................................................................................................... 1 II. THE INTERVENORS' EVIDENCE....................................................................................... 2 A. No due diligence...........................................................................................................2 B. No understanding of the Asset Transaction or the circumstances of Sequoia's bankruptcy.................................................................................................................... 2 C. No relevant expertise..................................................................................................4 D. Value of ARO.................................................................................................................4 III. RESPONSE TO THE INTERVENORS' BRIEFS................................................................. 6 A. OWA's Brief...................................................................................................................6 B. Industry Intervenors' Brief......................................................................................... 9 HIGHLIGHTED TRANSCRIPTS FROM QUESTIONING...........................................................13 AUTHORITIES IN RESPONSE TO INTERVENORS..................................................................13 SUPPLEMENTAL AUTHORITIES............................................................................................... 13 I. OVERVIEW 1 1. The Intervenors were granted permission to intervene on the basis that they will be directly and significantly affected by the outcome of the BIA Summary Dismissal Application and that they will provide expertise or a fresh perspective that will assist the Court. 2. In support of their intervention, the Intervenors filed affidavits containing irrelevant evidence and inadmissible opinions. The offending parts of the affidavits were struck or, in the case of the OWA Affidavit and First Industry Intervenor Affidavits, not considered. 3. Each of the Intervenors' affiants was questioned on his affidavit.2 Remarkably, none of the affiants had relevant experience or expertise to support much of what remained in their affidavits. They know nothing about corporate bankruptcy or s. 96 of the BIA. They have only a passing familiarity with the Asset Transaction, the Aggregate Transaction, and the relevant facts one would expect them to know before swearing an affidavit and presuming to tell the Court that they could be of assistance. 4. In addition, the Intervenors acknowledged that any effect on them is conditional and speculative. Their complaint is that //the Trustee loses this case, and //the Trustee does not sell the Goodyear Assets (which it has not tried to do), and //the AER declares the Goodyear Assets to be orphans (which it has not), and //the AER increases the Levy as a result of a declaration that the Goodyear Assets are orphans (which it has not), then they may have to pay a higher Levy. While that speculative concern about the potential consequences of Sequoia's bankruptcy may explain why they sought to intervene, it has nothing to do with whether the Asset Transaction should be declared void as against the Trustee pursuant to s. 96. 5. The real role of the Intervenors is to have their counsel file briefs to try to shore up the Trustee's case. Those briefs ignore certain critical facts (for example, the trust relationship between PEOC and POT), make incorrect assumptions or factual errors, and repeat or supplement arguments the Trustee has already made. The Intervenors offer nothing that might assist the Court in deciding the BIA Summary Dismissal Application. 1 This brief uses the defined terms in PricewaterhouseCoopers Inc. v Perpetual Energy Inc., 2020 ABQB 6 (the Reasons) [Perpetual Energy Defendants' Brief filed July 8, 2020 (Perpetual Brief), Tab 1]. 2 For ease of reference, condensed transcripts of the questioning of the Intervenors' affiants are highlighted and attached to this Brief in Tabs A to D. The complete transcripts have been filed. 2 II. THE INTERVENORS' EVIDENCE A. No due diligence 6. The Intervenors made almost no effort to familiarize themselves with the facts. Not one affiant had read the Asset Purchase Agreement or the Share Purchase Agreement.3 Not one had read the BIA Summary Dismissal Application,4 the Reasons from the first summary dismissal application,5 or, with exception of CNRL's affiant, the Perpetual Energy Defendants' Statement of Defence.6 Only Mr. De Pauw and Mr. Jackson could recall reading Ms. Rose's October 19, 2018 Affidavit, and Mr. Brannan was not even aware that she had sworn one.7 None of the affiants reviewed the Trustee's records (including its preliminary report) or Sequoia's bankruptcy records.8 7. On the other hand, almost all of them read the Trustee SOC9 and Mr. Darby's August 2, 2018 Affidavit (excluding most Exhibits).10 To borrow a phrase, the Intervenors were prepared to offer their assistance to the Court with tunnel vision, knowing next to nothing about the facts and not having bothered to consider if there were two sides to the story. For example, when asked if they had any concerns that they had only looked at one side of the story, Mr. Laing said he "felt comfortable with the facts [he] had been provided",11 and Mr. Brannan simply said "No".12 B. No understanding of the Asset Transaction or the circumstances of Sequoia's bankruptcy 8. The Intervenors' affiants lack even a basic understanding of the Asset Transaction. 9. Mr. Laing was asked if he knew the "crux" of the Asset Purchase Agreement and replied "I can assume only. I didn't read the document." When it was put to him that, in general, the 3 Transcript from September 15, 2020 Questioning of Lars De Pauw (De Pauw Tr.) at 9/24-10/6, 33/19- 34/4; Transcript from September 15, 2020 Questioning of Ron Laing (Laing Tr.) at 15/14-16; Transcript from September 16, 2020 Questioning of John K. Brannan (Brannan Tr.) at 9/19-22, 17/10-14; Transcript from September 16, 2020 Questioning of Antonio Jackson (Jackson Tr.) at 11/27-12/1-3. 4 De PauwTr. at 11/22-27; Laing Tr. at 16/3-7; Brannan Tr. at 10/19-11/1; Jackson Tr. at 19/3-5. 5 De Pauw Tr. at 11/15-17; Laing Tr. at 15/17-26; Brannan Tr. at 10/16-18; Jackson Tr. at 13/5-8. 6 De Pauw Tr. at 9/16-18; Laing Tr. at 13/27-14/4; Brannan Tr. at 9/11-12; Jackson Tr. at 12/6-15. 7 De Pauw Tr. at 9/8-10; Laing Tr. at 14/16-17, 15/9-13, 23/17-19; Brannan Tr. at 10/2-3, 17/17-19; Jackson Tr. at 12/6-12, 12/16-20. 8 De PauwTr. at 12/5-10; Laing Tr. at 16/10-13; Brannan Tr. at 11/6-10; Jackson Tr. at 13/20-24. 9 De Pauw Tr. at 7/14-19; Laing Tr. at 13/27-14/4; Brannan Tr. at 9/9-10; Jackson Tr. at 10/24. 10 De Pauw Tr. at 9/1-4; Laing Tr. at 14/5-6; Brannan Tr. at 9/14-15; Jackson Tr. at 11/5-9. 11 Laing Tr. 22/21-24. 12 Brannan Tr. at 17/17-19. 3 Asset Transaction combined the legal and beneficial interests in the Goodyear Assets, his response was "that wouldn't be ... outside the realm of possibility."13 10. Mr. De Pauw was questioned on his familiarity with the term "Asset Transaction" and said: "I believe it relates to the transaction on the [Goodyear Assets]". And when pressed on "which" transaction: "I guess, the -- the steps that were from -- taken in the transactions between Perpetual that ended up with Sequoia".14 11. Mr. Brannan conceded that he has no "detailed knowledge of the transaction between Perpetual and Sequoia"15 and that his understanding is based on "only what [he] historically read in the paper about the transaction occurring".16 12. Mr. Jackson, like the other affiants, read none of the agreements and did not know what they did,17 but was prepared to swear in his affidavit that they "conflict with the oil and gas industry's understanding, expectation, and application of standard contractual provisions".18 13.
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