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Motion Record e—document T-982-19 FEDERAL COURT f COUR FEDERALE E L P oE Noseli2§31§19No. T-982-19 0s E FEDERAL COURT Svetlana Dobrota Between Vancouver, BC Attorney General of British Columbia Plaintiff And Attorney General of Alberta Defendant MOTION RECORD The Attorney General of British Columbia’s Response to the Defendant’s Application to Strike the Action Hearing Date: September 1212-13,-13, 2019 Attorney General of British Columbia Attorney General of Alberta Plaintiff Defendant J. Gareth Morley and Robert Danay Evan Dixon and Paul Chiswell Ministry of Attorney General Burnet,Bumet, Duckworth & Palmer LLP Legal Services Branch 2400, 525 —– 8 Avenue SW 13011301-865-865 HornbyHomby Street Calgary, Alberta T2P 1G11G1 Vancouver, British Columbia V6Z 2G3 Tel: 403403-260-0162-260-0162 Tel: 604604-660-3093-660-3093 Fax: 403403-260-0332-260-0332 Fax: 604604-660-2636-660-2636 Email: [email protected] Email: [email protected] [email protected] [email protected] INDEX TAB PLEADING PAGE Plaintiff’sPlaintiffs MemoraMemorandumndum of Argument in Response to the Defendant’s 1 1 Application to Strike, dated September 11,11, 2019 TABTAB 11 1 No. T-982-19 FEDERAL COURT Between Attorney General of British Columbia Plaintiff And Attorney General of Alberta Defendant MEMORANDUM OF FACT AND LAW OF THE ATTORNEY GENERAL OF BRITISH COLUMBIA Alberta’s Application on Jurisdiction Attorney General of British Columbia Attorney General of Alberta Plaintiff Defendant J. Gareth Morley and Robert Danay Evan Dixon and Paul Chiswell Ministry of Attorney General Burnet,Bumet, Duckworth & Palmer LLP Legal Services Branch 2400, 525 —– 8 Avenue SW 1301-8651301-865 HornbyHomby Street Calgary, Alberta T2P 1G11G1 Vancouver, BBritishritish CColumbiaolumbia V6Z 2G3 Tel: 403-260-0162 Tel: 604-660-3093 Fax: 403-260-0332 Fax: 604-660-2636 Email: [email protected] Email: [email protected]@gov.bc.cac.ca [email protected] [email protected] 2 Table of Contents PART I —– STATEMENT OF FACT .................................................................................................................................................................... 11 Overview .................................................................................................................................................................................................................................................................. 11 Facts ................................................................................................................................................................................................................................................................................ 3 Proceeding in Alberta’s Court of Queen’s Bench...................................................................................................................................... 6 Description of the Action —– The Section 92A Claim ............................................................................................................................ 8 Description of the Action —– Section 121121 of the Constitution Act, 1867I867 .................................................................. 9 PART II —– STATEMENT OF POINTS IN ISSUE ...................................................................................................................... 10 PART III —– STATEMENT OF SUBMISSIONS ............................................................................................................................ 11 A. Rule 221 ......................................................................................................................... 1111 B. Section 1919 Should Be Interpreted Using the Principles of Statutory Interpretation ...... 1111 C. The Ordinary Meaning of the French and English Text of Section 1919 Includes Actions for Declaration of Invalidity ..................................................................................................... 1414 D. The Historical Context and Jurisprudence: “Controversies” Have Always Included Constitutional Questions ........................................................................................................... 1515 E. The Continuing Purpose of Section 1919 Fits Constitutional Controversies Particularly Well 21 F. This Action Is About Legal Rights, Obligations and Liabilities That May Exist Between Governments ............................................................................................................................. 22 G. The Action is Not Premature .................................................................................................................................................................................... 27 PAPARTRT IV —– ORDERS SOUGHT .......................................................................................................................................................................... 30 PART V —– LIST OF AUTHORITIES .......................................................................................................................................................... 31 3 PART I —– STATEMENT OF FACT Overview 1.1. Section 1919 of the Federal Courts Act gives this Court jurisdiction to decide “controversies”/”“controversies”/”lesles cas de litigelitige”” between two provinces if the legislatures of the contending provinces pass legislation granting such jurisdiction.1jurisdiction.1 The legislatures of Alberta and British Columbia have both done so.so.22 The Attorney General of British Columbia (“AG BC”) has brought an action for a declaration that Alberta’s Preserving Canada’sCanada ’s Economic Prosperity Act3Act3 - colloquially known as the “Turn Off the Taps” law -- is unconstitutional. The Attorney General of Alberta (“AG Alberta”) vigorously opposes. The question is whether this is a “controversy” that this Court can and should hear. 2. The Act gives Alberta’s Minister of Energy (the “Minister”) the power to restrict supplies of refinedrefined fuels, crude oil and naturnaturalal gas from Alberta to British Columbia. Legislative debates at the time the Act was adopted madmadee it clear that the intended effect of the Act was to give the Minister a “weapon” to use against British Columbia in retaliation forfor,, or in order to exert control over, British Columbia’s position on the Trans Mountain Expansion Project. British Columbia receives the vast majority of its refinedrefined fuelfile] and light crude from Alberta. The idea of the Act was to allow the Minister to leverage this interdependence —– developed on the assumption that British Columbia, as part of Canada, had fuel security —– to affect the politics of British Columbia. 3. The AG BC contends that the Act is contrary to two sections of the Constitution Act, 1867:1867: s. 92A(292A(2)) —– which limits provincial authority over petroleum exports to unreunrefinedfined products and forbids authorizing or providing for discrimination against other parts of Canada in price or supply —– and s. 121,121, which guarantees free admission of products of one province into another. 11 Federal Courts Act,Act, RSC 1985,1985, c F-7F-7,, s. 1919.. The English and French versions are set out in full in Part III. 2 Judicature Act,Act, RSA 2000, c J-2,J-2, s. 27(b) (“The .... Federal Court of Canada, […],[. .], according to the Federal Courts Act (Canada) [has][has] jurisdictionjurisdiction […][. .] (b) in controversies between Alberta and any ototherher province or territory of Canada in which an Act similar to this Act is in force”). The wording of s. 1(1)(b)1(1)(b) of the Federal Courts Jurisdiction Act, RSBC 1996,1996, c. 135135 is iidenticaldentical with the substitution of “British Columbia” for “Alberta”. 3 S.A.SA. 2018, c. P. 21.5 (the “Act”) 4 --2- 2 - 4. The AG Alberta has responded with an application under Rule 221 to strike the AG BC’s claim, without a hearing on the merits, on the ground it “discloses no cause of action.” It says the AG BC’s Claim is “plainly and obviously” not a “c“controversy”ontroversy” between British Columbia and Alberta, and therefore this Court has no jurisdiction under s. 19.19. It also says it is also plain and obvious that the declaratory relief sought is premature. 5. If a case in which one province threatens another with trade sanctions and the other responds that the threat is unconstitutional is not a “controversy”, it is difficultdifficult to think what would be. As the Federal Court of Appeal has recently stated, there is “no limit” as to the type of controversy to which s.5. 1919 apapplies.4plies.4 The jurisdictionjurisdiction to hear these disputes comes from (is “nourished” by) the provincial legislatures themselves and not only from Parliament and covers matters within s. 92 of the Constitution Act.5Act.5 The ordinary and common meaning of the English and French text, the historical context of section 1919 and its predecessors,predecessors, and the purpose of the section all support a broad meaning for the word “controversy,” including constitutional controversies. The Federal Court has recently confirmedconfirmed that it has the power to issue declarations of invalidity under s. 52 of the Constitution Act, 19821982.. 6 6. PerplexinglyPerplexingly,, the AG Alberta says the AG BC is not asserting a legal right, obligation or liability between the two governments. Nothing could be further from the truth. The principles of the rule of law and constitutionalism mean that all legislatures have an obligatobligationion not to enact unconstitutional statutes,
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