Alberta QB Dismisses Action Against EPCOR and City of Edmonton

On December 23, 2009, Justice Monica Bast of the Alberta Court of Queen's Bench granted a summary judgment to EPCOR, Capital Power and the City of Edmonton on the basis of res judicata in an action brought by retired lawyer and former Alberta Securities Commission Chair William Pidruchney.

The action by Pidruchney disputed the $2.86 billion sale of EPCOR'S entire electricity-generating business to Capital Power, as announced by EPCOR on May 8, 2009.

The transaction involved a number of components, including creation of a new public company, Capital Power, an initial public offering of shares of Capital Power, the sale of EPCOR Power Generation assets and business to Capital Power, and the exchange of debt, among other things.
EPCOR was a corporation wholly owned by the City of Edmonton as sole shareholder.

Pidruchney's action brought in his own name in his capacity as a citizen was for an order compelling the city to hold public meetings and a public plebiscite on the issue of the sale, on the grounds that the resolution passed by the Councillors in the name of the City at a non-public (secret) meeting was invalid as a breach of the requirements of the Municipal Government Act of Alberta.

Pidruchney's first step was an application for an interim injunction, to halt the transaction before the public company made any distribution of shares. The application was made on July 3, 2009 and denied by Justice Ged Hawco on several grounds.

The application for an interim injunction was cited as the grounds for “res judicata.”

The action was not appealed, nor was there an appeal of the summary dismissal ordered on December 23.

A separate action brought by three union groups and three individuals in the form of an application for judicial review was also dismissed.

EPCOR and Capital Power were represented by A. Webster Macdonald, Jr., QC, David Tupper and Carol Hales of Blake, Cassels & Graydon LLP.

The City of Edmonton, Mayor and Councillors were represented by Mark Young of the City Law Branch.

William Pidruchney represented himself throughout.