Executive Summary: Key Legal and Evidentiary Issues

• The Court held that Remington’s real loss was a 10-year delay in being able to realize the market value of the entire Interlink Lands through development or sale, rather than a permanent loss of the 1.23-acre right-of-entry corridor, and that the LPRT’s award did not match that loss.

• The Court found the LPRT made several unreasonable errors under section 25(1)(b) of the Surface Rights Act, including limiting compensation to the “titled units,” not recognizing reversionary value, misidentifying the cause of development delay, and mis-assessing residual value.

• Applying compensatory damages principles of causation, reasonable foreseeability, and remoteness, the Court concluded that the ROE Orders and continued presence of the transmission lines caused Remington a 10-year delay in recovering the $94,123,829 market value of the Interlink Lands, based on their highest and best use as high-density, mixed-use development.

• Using an interest-style method on that market value, net of property-tax savings and adjusted for a 65% residual value that Remington retained while the lines remained, the Court awarded Remington a one-time compensation amount of $11,078,123 under section 25(1)(b), plus interest from May 17, 2018 at the Bank of Canada rate.

• The Court set aside the LPRT’s additional awards under sections 25(1)(c) and (d), holding that there was no proven separate loss of use for parking and that any adverse-effect award on a 10-metre strip would duplicate the development-delay loss already compensated under section 25(1)(b).

• Under section 26(9) of the Surface Rights Act, the Court held that Remington was successful on its appeal and ENMAX unsuccessful on its own appeal, and therefore ENMAX must pay Remington’s reasonable solicitor-and-client (lawyer-and-client) costs of the appeals, with the precise quantum to be determined after further steps if the parties cannot agree.

Background to the dispute over the Interlink Lands

Remington Development Corporation owns 11.27 acres of land in Calgary’s east Beltline known as the Interlink Lands, which it acquired mainly from Canadian Pacific Railway in 2002 and completed with a final parcel in 2010. On these lands, until removal in 2023, there were two double-circuit 138 kV overhead transmission lines supported by six lattice towers, which had been in continuous operation since at least 1948. The four parcels on which the lines were located (the Subject Properties) total 4.40 acres, and the specific areas covered by the right-of-entry orders (the ROE Lands) total 1.23 acres. As of May 17, 2018 (the Effective Date of the ROE orders), the Interlink Lands were zoned CC-X (City Centre Mixed Use District).

By 1970 ENMAX and CP were parties to three right-of-way agreements that allowed the lines to be on the lands, and those agreements were assigned to Remington when it purchased the bulk of the Interlink Lands. The agreements were terminable on three months’ notice, with ENMAX then obligated to remove the lines at its own expense. In March 2005 Remington gave termination notices requiring removal by June 30, 2005; ENMAX refused. In 2008 Remington commenced a civil action alleging trespass and breach of contract. In 2011 Justice Park held that the assignments to Remington were valid, that Remington had been entitled to terminate the agreements in March 2005, and that ENMAX had to bear the cost of burying or moving the lines, then estimated at approximately $11.8 million. ENMAX was directed to apply to the Alberta Utilities Commission (AUC) for permission to remove the lines; its appeal to the Court of Appeal was dismissed and leave to appeal to the Supreme Court of Canada was refused.

In August 2014 ENMAX applied to the AUC for approval to remove and relocate the lines, proposing a largely underground route along 11 Avenue S.E. at an estimated cost of $13.3 million and a construction period of about 12 months. In May 2015 the AUC denied the application. It noted that ENMAX proposed to treat relocation as a system cost to be paid by customers, that ENMAX would otherwise have to negotiate a right-of-way or apply to the SRB/LPRT for right-of-entry, and that any compensation ordered by the LPRT might also be sought to be flowed into rates. The AUC was not persuaded the relocation was necessary or in the public interest, in part because it lacked detailed information about Remington’s development plans and, consistent with its past practice, it did not rely on unapproved or speculative development concepts. Remington’s request to review and vary the AUC decision and its application for leave to appeal were both dismissed.

Since January 1, 2009, Remington has leased the entire Interlink Lands to the Calgary Exhibition and Stampede, which uses them for parking and storage. The evidence before the Court described this as the likely interim use during a delay period before development.

In July 2017 ENMAX applied to the Surface Rights Board (now the Land and Property Rights Tribunal) for right-of-entry orders over the ROE Lands, and those orders were granted on May 17, 2018. This triggered the mandatory compensation process under the Surface Rights Act, section 23 and section 25. A hearing was held in late 2020, and on October 21, 2022 the tribunal ordered ENMAX to pay Remington a lump sum of $7.9 million and annual payments of about $357,000. The parties agree ENMAX has paid $11,177,473.20 to Remington (including interest) pursuant to that decision.

Statutory framework and the LPRT’s decision

Section 25(1) of the Surface Rights Act lists factors the tribunal may consider in determining compensation, including market value of the land granted, per-acre value of the titled unit based on highest approved use, loss of use, and adverse effect, among others. Section 25(2) allows the tribunal to ignore residual and reversionary value of the land granted. Section 25(9) authorizes interest at the Bank of Canada rate from the date of the right-of-entry order. Section 26 provides for appeals to the Court of King’s Bench “in the form of a new hearing,” with the Court having the tribunal’s powers, required to either confirm or vary the order, and required to give a costs direction under section 26(9).

The LPRT decided that subsection 25(1)(a) did not apply because there was no evidence of any market for purchase and sale of the narrow ROE Lands. For subsection 25(1)(b), it interpreted “titled unit” to mean the certificates of title for the four Subject Properties and “highest approved use” to be the same as “highest and best use,” which it found to be future high-density mixed-use development in the medium term, taking into account that the Subject Properties formed part of the larger Interlink Lands. Using a direct comparison appraisal, preferring Remington’s appraiser’s comparables, and applying a base FAR of 5, it valued the entire Interlink Lands and then pro-rated that to the ROE Lands, obtaining a gross value of $10,555,309 for the ROE Lands. It declined to recognize any reversionary value, finding the evidence uncertain and speculative, but did find that Remington retained residual value—such as transferable density among parcels, benefits from the Stampede lease, and use of the lands as collateral—and quantified this residual value by reducing the ROE Lands’ value by 25%, yielding a subsection 25(1)(b) award of $7,916,482.

Under subsection 25(1)(c), the LPRT found that during an anticipated interim period of about 10 years before development, the only loss of use was Remington’s inability to use the areas under the tower bases for parking stalls. It awarded $500 per tower per year (six towers, totalling $3,000 per year), subject to future review. Under subsection 25(1)(d), it interpreted “remaining land of the owner” to mean the Subject Properties, identified a 1.1-acre 10-metre-wide strip adjacent to the ROE Lands as effectively unavailable for development, valued that strip at $7,079,780 based on its earlier per-acre figure, and instead of a lump sum awarded annual compensation equal to 5% of that amount ($353,989) on a reviewable basis. It awarded interest at the Bank of Canada rate on all compensation.

Both parties appealed this decision to the Court of King’s Bench. The appeals were heard over four weeks between October 7 and November 1, 2024, with written submissions in December 2024 and January 2025 and oral argument in February 2025. Remington asked the Court to increase compensation; ENMAX asked that compensation be significantly reduced, including through an “income approach” focused on interim parking revenue.

Standard of review and use of new evidence

Although section 26 describes the appeal as a new hearing and allows new evidence, section 19 of the Land and Property Rights Tribunal Act requires that the tribunal’s decision be reviewed on a reasonableness standard. The Court, following Mason v Canada and other authorities, adopted a “reasons-first” approach, examining whether the LPRT’s outcome and reasoning were justified, transparent and intelligible, taking into account the statutory scheme, evidence, submissions and prior jurisprudence. New evidence could render the earlier decision unreasonable by undermining its factual foundation, even if not before the tribunal.

The Court addressed the admissibility of “post facto” evidence because the LPRT hearing occurred more than two years after the Effective Date and the appeal almost six and a half years after. Relying on Beta Management v Edmonton (City), it held that for valuation questions explicitly pegged to the date of the right-of-entry order (such as subsections 25(1)(a) and (b)), only facts known or knowable on that date are relevant; post-event evidence of later sales or developments is generally not admissible to prove value as at the earlier date, though such evidence can be relevant to issues like the reasonableness of assumptions. For forward-looking loss-of-use and adverse-effect factors under subsections 25(1)(c) and (d), post-event evidence could be relevant to some issues, but remained subject to the general test of relevance.

The Court also summarized general compensatory damages principles applicable under section 25, including the “but-for” test for causation and the requirement that the type of loss be reasonably foreseeable, with hypothetical or future events taken into account as “real and substantial possibilities” rather than needing proof on a balance of probabilities. It noted that in section 25 cases the LPRT and courts have often rejected claims that were speculative or too remote.

Reframing the “taking” and identifying Remington’s real loss

The Court accepted that in section 25 cases the relevant “taking” includes both the legal infringement created by right-of-entry orders and the physical presence of the operator’s infrastructure on the land, considered in context. It held that here the taking was the infringement of Remington’s rights embodied in the ROE Orders and the continued presence of the transmission lines on the Interlink Lands authorized by those orders, in light of all factual circumstances as at the Effective Date.

The Court found that the LPRT did not explicitly identify the actual loss suffered by Remington, nor clearly link the loss to the taking and the award made, and instead applied what it called the usual “en bloc” approach of valuing the ROE Lands as if they were permanently taken. On the evidence before the Court, however, it was established that at some point after the Effective Date the transmission lines would be removed and the Interlink Lands, including the ROE Lands, would be developed to their highest and best use.

Justice Simard concluded that Remington’s potential actual loss was therefore not the permanent loss of the market value of the ROE Lands but the delay in recovering the market value of the entire Interlink Lands. The Court identified key factual findings supporting this conclusion: that the highest and best use of the Interlink Lands was high-density, mixed-use development; that only sophisticated developers such as Remington or similar parties would purchase or develop them; that such a developer would develop the lands only to their highest and best use and as an integrated site, not excluding the Subject Properties or ROE Lands; that no developer would develop while the lines remained; and that the lines would be removed at some point after the Effective Date, after which the lands would be developed.

Expert evidence on development scenarios, planning, and contamination

The Court heard evidence from multiple experts: real estate appraisers, specialists in the impact of transmission infrastructure on land value, planning experts, an architect, a quantity surveyor, and environmental experts. The appraisers agreed on standard definitions of “highest and best use” and “market value” from the Canadian Uniform Standards of Professional Appraisal Practice. They agreed that the highest and best use of the Interlink Lands was phased high-density mixed-use development.

Architect Jamie Clark produced three conceptual scenarios for developing the western portion of the Interlink Lands: one assuming the lines removed, one assuming the lines remained, and one assuming phased construction with the lines present in the first phase and removed for the second. He testified about how the presence of the lines would reduce the area available for towers and underground parking, resulting in fewer parking stalls, fewer storeys, and fewer residential and hotel units compared with the scenario without lines, and he expressed the opinion that only the scenario without lines was consistent with viability thresholds for such projects. Quantity surveyor David Crane estimated the total construction costs of these scenarios.

Development expert Chris Ollenberger gave opinion evidence that, from a development management perspective, a reasonable developer would not proceed under the scenarios where the lines remained, because the loss of units would not be matched by proportional savings in cost. Remington’s president testified that the transmission lines were an obstacle to development and that Remington would not develop the Interlink Lands while the lines remained.

On municipal planning and approvals, the Court received evidence from planners Greg Brown and Patricia Maloney. Brown, with long experience obtaining development approvals in Calgary, testified about the City’s planning documents applicable to the Beltline and Rivers District and the City’s interest in encouraging high-density mixed-use development. Maloney relied in part on the 2019 Rivers District Master Plan, published after the Effective Date, to suggest that major development of the Interlink Lands would likely occur only after infrastructure such as a 5 Street or 6 Street S.E. underpass and a Green Line LRT station location were finalized, estimating a 10–30 year horizon. The Court treated the contents of the 2019 plan as post-fact evidence and did not rely on it as informing conditions on the Effective Date. Brown opined that, given the City’s approach, unresolved infrastructure issues would not prevent a developer from advancing a development permit application and that the City and a developer could work out phasing or conditions.

Environmental experts Mark Bowles, James Sevigny, and Margaret Allan provided phase 1 and phase 2 environmental site assessments and remediation cost and timing estimates. Bowles’ Phase 2 ESA, relying on multiple historical studies and new drilling, showed that a 2003 remediation had removed large volumes of cinders and hydrocarbon-affected soil and that remaining contamination was relatively limited, with some exceedances of guidelines in soil and groundwater. Sevigny estimated the cost of necessary remediation and monitoring at approximately $2.6 million and testified that most remediation work could be integrated with excavation for development. Allan’s model produced a higher cost estimate and she expressed concerns about possible additional contamination, but she acknowledged that her model preceded the later Phase 2 ESA and adjusted some views after reviewing it. The Court accepted that contamination would not be a significant factor in the timing or cost of development, consistent with the LPRT’s finding.

Causation and the 10-year development delay

After considering all of the evidence, the Court found that the primary cause of delay in developing the Interlink Lands was the need to obtain AUC approval to remove the lines, together with the subsequent physical removal, and that this delay would reasonably be about 10 years from the Effective Date. The Court noted that Remington had been attempting to have the lines removed since 2005, that ENMAX had resisted, that the AUC had previously refused an application despite both parties’ efforts, that AUC decisions were not subject to negotiation in the same way as municipal approvals, and that additional AUC applications, reconsiderations and appeals were possible. It also considered that ENMAX’s 2014 application materials had estimated a 12-month period to complete physical relocation.

The Court rejected ENMAX’s position that unresolved municipal infrastructure planning or Remington’s separate “CP Action” litigation over other lands were the real causes of delay. It found that, judged as at the Effective Date, Remington or another developer could have pursued development approvals without waiting for final infrastructure siting decisions, and that the CP Action—commenced in 2008 and unrelated to the ROE Orders—would likely have concluded before the time needed to obtain a new AUC order and remove the lines. The Court also rejected arguments that Remington’s failure to make a full development permit application or to approach the AUC itself constituted a failure to mitigate, given the high costs of such applications and the lack of evidence that a more detailed development plan would have led to prompt AUC approval.

The Court therefore concluded that, but for the ROE Orders and continued presence of the transmission lines on the Effective Date, Remington could have developed or sold the Interlink Lands in a manner consistent with their highest and best use, and that the taking caused a 10-year delay in Remington’s ability to realize the market value of the lands. It further found that there were no reasonable mitigation steps Remington could have taken to shorten that delay.

Market value of the Interlink Lands and residual value during the delay

To quantify the loss, the Court first determined the market value of the entire Interlink Lands as at the Effective Date on the assumption that the transmission lines were not present. Both main appraisers, Bradford Wagar for Remington and Michael Parsons for ENMAX, used a direct comparison approach and agreed that “price per buildable square foot” was the appropriate unit of comparison. They selected and adjusted various comparable downtown and Beltline land sales. Wagar initially used a FAR of 7 for most of the Interlink Lands and 6 for the eastern portion, while Parsons insisted that only the base FAR of 5 in effect in 2018 could be used because any higher FAR depended entirely on City discretion.

The Court accepted Parsons’ criticism on FAR and held that a FAR of 5 should be used across the Interlink Lands when determining market value as at the Effective Date. It also agreed with Wagar that a separate “development scale” discount was not warranted in the circumstances and that certain comparables with very different characteristics, including one suburban property sold through a municipal bid process, should not be relied on. After adjusting Wagar’s calculations to a FAR of 5 throughout, the Court concluded that the market value of the Interlink Lands as at the Effective Date was $94,123,829.

The Court then considered the value of the Interlink Lands while the lines remained and before development, referred to as residual value. Relying principally on the analysis of Brian Gettel, and taking into account the extent and prominence of the transmission corridor on and over the Interlink Lands, the Court found that the presence of the lines would significantly diminish the market value of the lands from the perspective of a developer. It concluded that the Interlink Lands retained 65% of their market value during the delay period, representing a residual value of $61,180,488, and that a 35% reduction from full market value was appropriate.

Calculating compensation for the 10-year delay under section 25(1)(b)

Because there was no detailed evidence before the Court of either (i) the net income stream that would be generated by a particular future development or (ii) the market value of the Interlink Lands 10 years after the Effective Date, it adopted an “interest on capital value” method to quantify the loss caused by delay. Drawing on Prime Potash Corp. v Bison Petroleum and other authorities, Justice Simard treated the loss as the cost of being kept out of the use of capital equal to the market value of the lands.

Remington led evidence that its cost of borrowing as at the Effective Date was 4.5% per annum. Applying this rate to the $94,123,829 market value of the Interlink Lands produced an annual cost of $4,235,572. At the same time, Remington continued to receive a property-tax benefit while leasing to the Stampede. Using the 2018 assessed value of $55,100,000 and the 2018 non-residential mill rate of 1.94264%, Wagar calculated the annual property-tax saving as $1,070,394.64. Subtracting this saving from the borrowing-cost proxy produced a net annual cost of $3,165,178. Multiplying by 10 years yielded a gross delay loss of $31,651,780.

The Court then adjusted this gross figure to account for the 65% residual value that Remington retained during the delay period. Applying that 65% factor as a reduction resulted in a subsection 25(1)(b) compensation amount of $11,078,123 ($31,651,780 minus $20,573,657). The Court held that this figure properly measured the loss caused by the 10-year delay in realizing the full market value of the Interlink Lands.

The Court also confirmed that interest must be paid on this compensation amount under section 25(9) of the Surface Rights Act. It ordered ENMAX to pay interest on $11,078,123 from the Effective Date of the ROE Orders at the Bank of Canada rate in force on that date.

Treatment of other section 25 heads of compensation

The Court upheld the LPRT’s conclusion that subsection 25(1)(a) did not apply because there was no evidence of any open-market sale value for the narrow ROE corridor considered on its own. It rejected ENMAX’s attempt to recast subsection 25(1)(a) as an income-based calculation of interim parking revenue, holding that this was unsupported by the evidence because Remington did not actually operate a commercial parking business on the Interlink Lands and there was no evidence that the Stampede would pay higher rent without the tower bases.

Regarding subsection 25(1)(c), the Court held that the LPRT’s award of $3,000 per year based on a per-tower figure borrowed from rural cases was unreasonable. The Court found there was no evidence that Remington lost any income from parking because of the area occupied by the tower bases under the Stampede lease, and that the development-delay award under subsection 25(1)(b) already reflected the temporary inability to use the lands for their highest and best use. It concluded that any further loss-of-use award would duplicate that loss and should not be made.

For subsection 25(1)(d), the Court held that the LPRT’s award based on a 1.1-acre 10-metre strip was also unreasonable in light of the findings that the Interlink Lands would only be developed after the lines were removed and that the whole site, including that strip, would then be developed together. Because the Court’s subsection 25(1)(b) award already compensated for the delay affecting the entire Interlink Lands, including that strip, any annual adverse-effect award based on its value would again duplicate the development-delay compensation. The Court therefore concluded that no compensation should be awarded under subsection 25(1)(d).

The Court also held that the LPRT’s refusal to recognize any reversionary value was an error. Given the findings that, as at the Effective Date, the lines would eventually be removed and the Interlink Lands, including the ROE Lands, would be developed, the Court found that Remington would realize the reversionary value of those lands. It held that the correct evidentiary standard for such future events was the “real and substantial possibility” test from Athey v Leonati, not a requirement for “clear, usable evidence,” and that on the evidence before it reversionary value should be recognized.

Effect of the 2010 Release in the separate civil action

ENMAX argued that a 2010 Release signed by Remington in the earlier civil action barred some or all of the present compensation claim, but the Court rejected this. The Release, read with the contemporaneous letter agreement and pleadings, identified and released Remington’s civil claim for damages estimated at over $200 million for alleged loss of profits and delay in development said to have been caused by ENMAX’s breaches of the former right-of-way agreements, while preserving Remington’s claim for rent-style compensation based on 8% of land value. The Court held that the Release applied only to claims made or asserted in that civil action and did not extend to statutory compensation rights under the Surface Rights Act arising from the later ROE Orders. The present subsection 25(1)(b) award was therefore not barred by the Release.

The Court also noted expressly that its findings in this SRA appeal do not bind the parties or the Court in the ongoing civil action, particularly regarding Remington’s rent claim there. It emphasized that the issues and evidence in that action, including alleged breach of contract and trespass and quantification of rent-based compensation, were not decided in this appeal.

Summary of the main merits outcome

In its September 15, 2025 Reasons for Judgment, the Court ordered that ENMAX must compensate Remington by making a one-time payment of $11,078,123 and must pay interest on that amount from the Effective Date at the Bank of Canada rate on that date. It set aside the LPRT’s separate awards under subsections 25(1)(c) and (d). The findings rested on a conclusion that the LPRT’s subsection 25(1)(b) analysis was unreasonable in several respects and that Remington’s actual loss, as of May 17, 2018, was a 10-year delay in realizing the full market value of the Interlink Lands.

Costs decision under section 26(9) of the Surface Rights Act

In a later Ruling on Costs dated February 19, 2026, the Court addressed which party was entitled to costs and in what amount. Section 26(7)(d) of the Surface Rights Act requires the Court to make directions as to costs in accordance with section 26(9). Under section 26(9)(a), when an appeal is by the operator, costs of the appeal are payable by the operator on the basis of the lawyer’s charges to the client regardless of the result, unless special circumstances justify another basis. Under section 26(9)(b)(i), when an appeal is by the owner or occupant and is successful, costs are payable by the operator on the basis of the lawyer’s charges to the client.

The Court accepted that the 2009 amendments that replaced “solicitor and client” with “on the basis of the lawyer’s charges to the client” were housekeeping or consequential only, so that the new wording is equivalent to “solicitor and client costs.” It cited recent decisions, including 1724732 Alberta Ltd. v Lexin Resources Ltd., and noted the long line of jurisprudence holding that landowners litigating statutory compensation claims are not ordinary litigants and that full indemnity costs are warranted in such cases to avoid eroding compensation.

Remington sought its solicitor-and-client costs of the appeals; ENMAX argued that each party should bear its own costs because Remington was not successful or substantially successful, and because the requested costs (approximately $2,528,771.80 in legal fees plus $544,203.74 in expert fees) exceeded the increased compensation. The Court rejected ENMAX’s position. It noted that ENMAX’s calculation of success focused only on the net increase over the amounts paid under the LPRT’s decision and ignored ENMAX’s own appeal position, under which it had argued that compensation should be reduced to $312,000. The Court observed that its award was approximately 3,800% higher than ENMAX’s requested amount, that it had found five unreasonable errors by the LPRT, and that Remington’s experts were preferred on most substantive disputes.

Justice Simard held that Remington was successful in its appeal within the meaning of section 26(9)(b)(i), and that ENMAX was unsuccessful in its own appeal within the meaning of section 26(9)(a). As a result, Remington’s costs of both appeals are payable by ENMAX on the basis of Remington’s lawyer’s charges to its client, unless special circumstances exist. The Court found no special circumstances justifying any other basis. It also noted that ENMAX could have limited its exposure to section 26(9)(a) costs by not filing its own appeal, since the Court already had power under section 26(7) to vary the LPRT’s order on Remington’s appeal alone.

The Court then addressed the nature and assessment of those costs. It distinguished “solicitor-and-client” costs—limited to fees and disbursements that a reasonable client might be required to pay for reasonably necessary steps—from “solicitor-own-client” or full-indemnity costs that include all contractual extras and are rarely ordered except in cases of serious litigation misconduct. The Court found no misconduct of that kind. It held that Remington is not entitled to recover “frills or extras” but is entitled to its reasonable solicitor-and-client costs.

While Remington had provided detailed backup for its legal fees and disbursements and ENMAX had raised various objections, the Court concluded that it did not yet have enough information to fix the precise amount. It commented in general terms on ENMAX’s complaints, indicating for example that it was not unreasonable for experts to prepare new reports and to prepare afresh for the appeals, and that some objections had limited relevance. The Court directed the parties to attempt to agree on the total quantum or on partial issues within 45 days, and stated that if they could not agree they could arrange a further meeting with the Court to address the steps needed for the judge to determine the exact amount.

In its conclusion on costs, the Court declared that Remington is entitled to its solicitor-and-client costs of the appeals and set out a process for the parties to attempt to reach agreement on quantum, failing which the Court would be available to resolve remaining issues.