These are losses that Prosper cannot recover from the Government of Alberta on judicial review. Moreover, any further delay risked Prosper losing out on a third winter drilling season. Irreparable harm: Prosper demonstrated a meaningful risk of irreparable harm, including that the company will not be able to continue to pay its costs without incoming revenue and that its survival is in jeopardy.Indeed, on average, Cabinet takes four months following an AER hearing to decide whether to approve a project and, prior to the Project, Cabinet had not taken more than seven months to decide. Strong prima facie case: Prosper established a strong prima facie case that 19 months of delay breached CabinetвЂ™s duty to decide within a reasonable period.Justice Romaine then applied the modified three-part test for mandatory interlocutory injunctions, finding that Prosper meet each element: If Cabinet never decided, it would render its decision-making powers meaningless. Further, Justice Romaine distinguished between CabinetвЂ™s discretion over the content of its decision and the requirement to decide. Justice Romaine found that CabinetвЂ™s decision-making power under the OSCA includes an implied duty to decide. In doing so, Justice Romaine rejected the Government of AlbertaвЂ™s arguments that Cabinet is immune from mandatory court orders generally or when exercising an absolute and unfettered discretion. Madam Justice Romaine of the Court of QueenвЂ™s Bench ordered Cabinet to decide on the Project within 10 days, granting both mandatory interlocutory injunctive relief and mandamus.

Prosper did not seek an order directing Cabinet to approve the Project rather, it only sought an order that Cabinet decide, one way or another. Therefore, Prosper brought an application for mandatory interlocutory injunctive relief or mandamus directing Cabinet to issue a decision on the Project. Nineteen months after the AER decision, Cabinet had not issued its decision or explained to Prosper why a decision could not be issued.Дue to CabinetвЂ™s delay, ProsperвЂ™s business (of which the Project is its primary asset) was on the verge of collapsing without a decision on the Project. 10(3) of the Oil Sands Conservation Act (OSCA), which reserves the final decision to Cabinet. In June 2018, the Alberta Energy Regulator (AER) found the Project to be in the public interest and approved it subject to Cabinet authorization under s. The Project is a proposed bitumen recovery scheme using steam-assisted gravity drainage to produce up to 10,000 barrels/day. In Prosper, the Court found an unjustified 19-month delay to be вЂњabusiveвЂќ and ordered Cabinet to decide within 10 days whether to approve Prosper Petroleum Ltd.вЂ™s (Prosper) Rigel Oil Sands Project (the Project). In reasons for decision issued on February 18, 2020, the Alberta Court of QueenвЂ™s Bench confirmed in Prosper Petroleum Ltd v Her Majesty the Queen in Right of AlbertaВ ( Prosper) that the Alberta Cabinet cannot unreasonably and unjustifiably delay its decision on whether to approve an oil sands project. Author(s): Sander Duncanson, Sean Sutherland, Maureen Killoran, QC, Luke Stretch

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