Appendix “A” to Notice of Motion of the Coldwater Indian Band January 12, 2016
LIST OF AUTHORITIES
CASES
A. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2015 FCA 222
B. Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245
C. Varco Canada Ltd v Pason Systems Corp, 2011 FC 467
Date: 20151020
Docket: A-358-14
Citation: 2015 FCA 222
CORAM: RYER J.A. WEBB J.A. RENNIE J.A.
BETWEEN: 2015 FCA 222 (CanLII)
CHIPPEWAS OF THE THAMES FIRST NATION
Appellant
and
ENBRIDGE PIPELINES INC. THE NATIONAL ENERGY BOARD ATTORNEY GENERAL OF CANADA
Respondents
Heard at Toronto, Ontario, on June 16, 2015.
Judgment delivered at Ottawa, Ontario, on October 20, 2015.
REASONS FOR JUDGMENT BY: RYER J.A.
CONCURRED IN BY: WEBB J.A.
DISSENTING REASONS BY: RENNIE J.A.
Date: 20151020
Docket: A-358-14
Citation: 2015 FCA 222
CORAM: RYER J.A. WEBB J.A. RENNIE J.A.
BETWEEN: 2015 FCA 222 (CanLII)
CHIPPEWAS OF THE THAMES FIRST NATION
Appellant
and
ENBRIDGE PIPELINES INC. THE NATIONAL ENERGY BOARD ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
RYER J.A.
[1] This is an appeal by the Chippewas of the Thames First Nation (the “Appellant”) from a decision of the National Energy Board (the “Board”) approving an application by Enbridge
Pipelines Inc. (“Enbridge”) for the Line 9B Reversal and Line 9 Capacity Expansion Project (the
“Project”). The reasons for the Board’s decision were issued on March 6, 2014 and may be cited as OH-002-2013.
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[2] The Appellant asks the Court to quash the Board’s approval of the Project “… because the Board was without jurisdiction to issue exemptions and authorizations to [Enbridge] prior to the Crown fulfilling its duty to consult and accommodate the Appellant”.
[3] For the reasons that follow, I would dismiss the appeal.
I. RELEVANT STATUTORY PROVISIONS 2015 FCA 222 (CanLII) [4] The statutory provisions that are relevant to this appeal are subsections 21(1), 22(1), 52 and 58 of the National Energy Board Act, R.S.C., 1985, c. N-7 (the “NEB Act”) and subsection
35(1) of the Constitution Act, R.S.C. 1985, App. II, No. 44, Schedule B (the “Constitution Act”).
II. BACKGROUND
[5] In 1976, Line 9 began transporting oil eastward from Sarnia, Ontario to Montreal,
Quebec. In 1999, the Board approved a reversal of the flow of oil. In July of 2012, the Board approved the re-reversal of the flow of oil in a segment of Line 9 from a location near Sarnia to a location near Hamilton, Ontario (“North Westover”).
[6] The application with respect to the Project was made pursuant to section 58 of the NEB
Act. In the application, Enbridge requested approval for:
a) a reversal of the direction of the flow of oil between North Westover and Montreal;
b) an increase in Line 9’s capacity from 240,000 barrels per day to 300,000 barrels per day; and
c) the transportation of heavy oil.
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[7] The application stipulated that almost all of the work to implement the Project would take place within the existing pipeline right of way or upon property belonging to Enbridge.
[8] The Board determined that a public hearing in respect of the Project would be held and issued a Hearing Order to that effect. The Hearing Order was served upon the representatives of the federal Crown (the “Crown”) and the Crown in right of each of Ontario and Quebec. The
Appellant was granted intervener status and received funding from Enbridge in respect of its 2015 FCA 222 (CanLII) participation in the hearing.
[9] Enbridge engaged in discussions with the Appellant and other Aboriginal groups that were within 50 kilometres of Line 9. The Appellant acknowledged the consultation efforts by
Enbridge but submitted that these efforts did not meaningfully address their concerns.
[10] On September 27, 2013, the Appellant and another First Nation sent a letter (the “Request for Consultation Letter”) to several ministers of the Crown, including the Minister of Natural
Resources. The signatories noted their concerns with respect to the effect of the Project upon their Aboriginal and treaty rights and requested that the Crown immediately initiate a consultation process. They also requested that the Crown inform the Board that no consultation had taken place, and as a result, procedural steps involving the Crown and the Appellant would need to be taken.
[11] The signatories stipulated that Crown consultation was required because the NEB Act does not provide the Board with the power to engage in Haida duty consultations on behalf of
Page: 4 the Crown and to do so would be “wholly inappropriate” given the Board’s role as “an independent, quasi-judicial body”. In addition, the signatories stipulated that the Board does not have the jurisdiction to:
protect other parts of our land bases to ensure that there continue to be areas in our traditional territories where we are able to exercise our rights;
address cumulative impacts caused by changes to other Enbridge pipelines (such as Lines 5 and 6B) and facilities (Sarnia Tank Terminal) that are required to enable Enbridge to ship 300,000 bpd of crude oil on Line 9; 2015 FCA 222 (CanLII) address cumulate impacts caused by changing the type of crude oil that will be used as feedstock by petrochemical and chemical refineries in Sarnia;
provide AFN and COTTFN with economic accommodation for potential impacts to our rights;
conduct the public hearing and make a decision under s. 58 in a way which ensures that, if the Project is approved, accommodation provided to AFN and COTTFN is commensurate with potential adverse impacts on our respective rights and interests; and
address historic and ongoing infringement of our rights caused by the construction and operation of Line 9.
[12] No reply to the Request for Consultation Letter was made by the Crown prior to the conclusion of the hearing before the Board.
[13] The hearing process began on October 8, 2013 in Montreal and ended on October 18,
2013, in Toronto, Ontario. The Crown did not participate in the hearing.
[14] At the hearing, the Appellant described its treaty and Aboriginal rights through written evidence, including a preliminary Traditional Land Use study outlining the use of land adjacent to the Line 9 right of way, and oral representations. The evidence contained expressions of the
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Appellant’s deep spiritual connection to its traditional land and resources and its concerns with respect to potential threats to its treaty and Aboriginal rights that could arise from the approval of the Project. In addition, the Appellant’s Chief’s affidavit stated that the Appellant was entitled to share in the revenues that were being generated by the transportation of oil through Line 9.
[15] During final argument at the hearing, the Appellant asserted that the Board was required to decline to grant the Project approvals requested by Enbridge until Crown consultation had 2015 FCA 222 (CanLII) occurred.
[16] By letter dated January 30, 2014 (the “Crown Response Letter”), the Minister of Natural
Resources replied to the Request for Consultation Letter. The Minister stated that:
a) the Crown was committed to meeting its legal duty to consult whenever it contemplates conduct that could adversely affect an established or potential Aboriginal or treaty right;
b) in support of that commitment, the Government had introduced a Responsible Resources Plan, which in part addressed Aboriginal consultation issues in respect of major projects; and
c) the Government relies on Board processes to address potential impacts to Aboriginal and treaty rights stemming from projects under the Board’s mandate.
III. THE BOARD’S DECISION
[17] The Board acknowledged the potential threat that the Project could pose to the
Appellant’s Traditional Land Use but was satisfied by Enbridge’s representations as to the safe operation of Line 9 and contingency operations in case of a pipeline rupture. As a result, the
Board stated that any impacts on the Appellant’s rights would be minimal and appropriately mitigated. The Board concluded that its approval of the Project was in the public interest and
Page: 6 consistent with the requirements of Parts III and IV of the NEB Act. Nonetheless, the Board’s approval was subject to a number of conditions that, according to the Board, would “… enhance
[the] current and ongoing pipeline integrity, safety and environmental protection measures to which Line 9 is already subject.”
[18] The Appellant was granted leave to appeal the Board’s decision, as required under subsection 22(1) of the NEB Act, on June 4, 2014. 2015 FCA 222 (CanLII)
IV. ISSUES
[19] The underlying issues in this appeal relate to the duty (if any) of the Crown, as enunciated by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of
Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 [Haida Nation], to consult with and accommodate the concerns of the Appellant relating to potential effects of the Project on their Aboriginal and treaty rights (the “Haida duty”).
[20] More particularly, there are two issues:
a) Whether the Board itself has been delegated the power to undertake the fulfilment of the Haida duty on behalf of the Crown in relation to the Project; and
b) Whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty.
I will deal first with the latter of the two issues.
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V. ANALYSIS
A. Was the Board required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty?
Standard of Review
[21] The issue of whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, 2015 FCA 222 (CanLII) which was not a party to the application, was under a Haida duty and, if so, whether it had discharged that duty, is a question of law that is reviewable on the standard of correctness
(Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308 at paragraphs
23-24, [2010] 4 F.C.R. 500 [Standing Buffalo]; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal
Council, 2010 SCC 43 at paragraphs 64-67, [2010] 2 S.C.R. 650 [Carrier Sekani]).
Standing Buffalo Governs
[22] In paragraph 2 of Standing Buffalo, the Court stated:
[2] The appellants raise the novel question of whether, before making its decisions in relation to those applications, the NEB was required to determine whether by virtue of the decision in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, the Crown, which was not a party to those applications or a participant in the hearings, was under a duty to consult the appellants with respect to potential adverse impacts of the proposed projects on the appellants and if it was, whether that duty had been adequately discharged.
[23] The Court answered this question in the negative and held that the Board was not precluded from exercising its jurisdiction to hear the applications that were before it. The Court did not decide that the Board lacked the power to determine whether the Crown was under a
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Haida duty and, if so, whether it met that duty (the “Haida Determinations”). Leave to appeal to the Supreme Court in Standing Buffalo was denied (33480 (December 2, 2010)).
[24] Subsequent to Standing Buffalo, there have been no amendments to the NEB Act that negate the continuing applicability of that decision.
Carrier Sekani 2015 FCA 222 (CanLII) [25] In late October of 2010, the Supreme Court of Canada released its decision in Carrier
Sekani. In that case, the Crown in right of British Columbia (the “BC Crown”), acting through the British Columbia Hydro and Power Authority (“BC Hydro”) sought approval from the
British Columbia Utilities Commission (“BCUC”), under the Utilities Commission Act, R.S.B.C.
1996, c. 473, to purchase electrical power under a contract with Rio Tinto Alcan Inc. (“RTA”).
[26] BCUC allowed BC Hydro’s application. It determined that the Haida duty had not been triggered because the First Nation failed to establish that the proposed power purchase contract would adversely affect any asserted Aboriginal rights. As such, a complete consideration of the adequacy of consultations was not required.
[27] On appeal, the British Columbia Court of Appeal (the “BCCA”) found that a more fulsome inquiry with respect to the Haida Determinations was required and remitted the matter to BCUC on that basis.
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[28] Before the Supreme Court of Canada, BC Hydro and RTA argued that the BCCA took too wide a view of BCUC’s role in deciding consultation issues and that BCUC had correctly concluded that the Haida duty had not been triggered. For its part, the Carrier Sekani Tribal
Council supported the BCCA’s decision to remit the consultation issue back to BCUC for more fulsome submissions on the consultation issue.
[29] In allowing the appeal, the Supreme Court determined that BCUC was correct in finding 2015 FCA 222 (CanLII) that it had the power to make the Haida Determinations and that its conclusion, that the Haida duty had not been triggered, was reasonable. In doing so, the Supreme Court stated that the role of each particular tribunal in relation to the Haida Determinations depends on the duties and powers that the legislature has conferred upon it.
[30] Specifically, the Supreme Court stated, at paragraph 69, as follows:
[69] It is common ground that the Utilities Commission Act empowers the Commission to decide questions of law in the course of determining whether the 2007 EPA is in the public interest. The power to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal’s power (Conway, at para. 81; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, at para. 39). “[S]pecialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates”: Conway, at para. 6. [Emphasis added]
[31] In addition, at paragraph 70, the Supreme Court referred to paragraph 71(2)(e) of the
Utilities Commission Act that required BCUC to consider “any other factor that [it] considers relevant to the public interest”. Thus, the Supreme Court concluded that BCUC was empowered
Page: 10 by the Utilities Commission Act to make the Haida Determinations in respect of the BC Hydro’s application for approval of the power purchase contract.
[32] The Supreme Court also found that a tribunal having the power to make the Haida
Determinations may nonetheless lack effective remedial powers. At paragraphs 61 and 63, the
Supreme Court stated:
[61] A tribunal that has the power to consider the adequacy of consultation, but
does not itself have the power to enter consultations, should provide whatever 2015 FCA 222 (CanLII) relief it considers appropriate in the circumstances, in accordance with the remedial powers expressly or impliedly conferred upon it by statute. The goal is to protect Aboriginal rights and interests and to promote the reconciliation of interests called for in Haida Nation.
[…]
[63] As the B.C. Court of Appeal rightly found, the duty to consult with Aboriginal groups, triggered when government decisions have the potential to adversely affect Aboriginal interests, is a constitutional duty invoking the honour of the Crown. It must be met. If the tribunal structure set up by the legislature is incapable of dealing with a decision’s potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts: Haida Nation, at paragraph 51.
[33] The decision in Carrier Sekani does not refer to the decision in Standing Buffalo and contains no analysis of the role of a tribunal in relation to Haida Determinations when the Crown is not a participant in the proceeding before that tribunal. In Carrier Sekani, the Crown was before BCUC, and BCUC made the initial Haida Determination, namely that the Crown was not under a Haida duty in the circumstances. In my view, Carrier Sekani does not go so far as to establish that before undertaking its consideration of the matter at issue in the proceedings before it, a tribunal must make the Haida Determinations irrespective of whether the Crown is a participant in those proceedings.
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Does Carrier Sekani Overrule Standing Buffalo?
[34] The Appellant submitted that Standing Buffalo has been overtaken by Carrier Sekani. I am not persuaded that this is the case.
[35] The circumstances in Carrier Sekani differed significantly from those in Standing
Buffalo. 2015 FCA 222 (CanLII)
[36] In Carrier Sekani, the BC Crown, in the form of BC Hydro, was a party to an application to BCUC, seeking approval to enter into a power purchase agreement with RTA. Thus, there was a specific Crown action – entering into and performing the electricity purchase contract – that was subject to the approval of BCUC and that same action was alleged by the First Nation to constitute Crown conduct that engaged BC Hydro’s duty to consult. In those circumstances, the question of whether the BC Crown was under, and, if so, had discharged, a Haida duty was squarely before BCUC. Indeed, BCUC itself was of the view that it was empowered to make the requisite legal and factual determinations. If BC Hydro had a Haida duty and it was not discharged, then BCUC had the ability to prevent BC Hydro from taking the action that allegedly had an adverse impact upon an asserted interest of the First Nation.
[37] In Standing Buffalo, the Standing Buffalo First Nation (“SBFN”) had been engaged in a consultation process with the federal Crown with respect to asserted claims of Aboriginal title to lands and other matters for a period of time extending from 1997 to 2006. The Crown ultimately determined that it had no Haida duty and that it was no longer prepared to continue the consultations. That prompted SBFN to intervene in the hearing before the Board with respect to
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Enbridge’s application, pursuant to section 52 of the NEB Act, for permission to construct the
Saskatchewan leg of the Keystone Pipeline. SBFN requested the Board to compel the Crown to participate in the hearing so that the Board could determine whether the Crown had met any applicable Haida duty. If the Crown did not participate, SBFN asserted that its evidence should be accepted by the Board and, as a result, the Board should determine that it was without jurisdiction to consider the substantive merits of Enbridge’s application before it. 2015 FCA 222 (CanLII) [38] In Carrier Sekani, the party seeking an approval from BCUC was the Crown itself. In contrast, the Crown did not participate in the approval proceedings before the Board in Standing
Buffalo. Instead, the party seeking approval from the Board was Enbridge, a private-sector corporation that was unrelated to the Crown.
[39] The non-participation of the Crown in the hearing process in Standing Buffalo is significant.
[40] While it is clear that the Board has the power to decide questions of law, it is important to note that the Haida Determinations also include factual findings. As stated by the Supreme Court in Haida Nation, at paragraph 61:
[61] …The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. …
Similarly the question of whether an existing Haida duty has been met is largely factual.
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[41] Because the Crown participated in the proceedings in Carrier Sekani, BCUC was in a position to make the factual findings required by the Haida Determinations in the normal adversarial context. If the Board had decided to make the Haida Determinations in Standing
Buffalo, it would have had to make the requisite factual findings outside of that adversarial context.
[42] Moreover, it is noteworthy that the implied power of a tribunal to undertake the Haida 2015 FCA 222 (CanLII) Determinations, which is stipulated in paragraph 69 of Carrier Sekani, refers to “constitutional issues that are properly before” the tribunal. Because the Crown was not a party to the Project approval proceedings, it is not clear that the Haida Determinations were “properly before” the
Board in these proceedings.
[43] The contrast between Carrier Sekani and Standing Buffalo is also marked in terms of the remedial capacity of the respective tribunals in those cases.
[44] In Carrier Sekani, BCUC was in a position to deny the approval requested by BC Hydro if it determined that BC Hydro had a Haida duty but had not fulfilled it.
[45] In Standing Buffalo, the Board had no remedial power over the Crown. It was unable to deny a request from the Crown because the Crown had not requested anything from it. If the
Board had decided to make the Haida Determinations (in the absence of evidence or argument from the Crown) and had concluded that the Crown has not fulfilled an applicable Haida duty, the Board’s only recourse – as asserted by SBFN – would have been to decline to adjudicate
Page: 14 upon Enbridge’s pipeline construction application. Thus, the Board’s remedy would have been to effectively deny Enbridge’s approval request because of a failure on the part of the Crown.
[46] As stipulated by the Supreme Court in paragraph 61 of Carrier Sekani (reproduced above), a tribunal’s remedial powers, which are directed towards the promotion of the reconciliation of interests, are limited to those conferred upon it by statute. Holding the pipeline approval application under consideration in Standing Buffalo in abeyance as some sort of 2015 FCA 222 (CanLII) leverage over the Crown, so as to force it to become a participant in the hearing before the
Board, would not, in my view, have been an appropriate way to promote the reconciliation of interests called for in Haida Nation.
[47] As is apparent from paragraph 63 of Carrier Sekani (reproduced above), the Supreme
Court acknowledged that tribunals may lack practical and effective remedial powers to deal with failures on the part of the Crown to comply with applicable Haida duties. In such circumstances, the Supreme Court states that the appropriate remedies must be sought in the courts.
[48] This Court’s decision in Standing Buffalo validated the fulfillment of the Board’s regulatory mandate with respect to Enbridge’s application for pipeline construction approval.
However, that decision did not leave SBFN without any ability to have the Crown’s Haida duty adjudicated. In that case, SBFN could have sought judicial review of the Crown’s decision to terminate the consultations with SBFN in 2006.
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[49] In conclusion, it is my view that Carrier Sekani has not overruled Standing Buffalo because the Supreme Court did not address the issue of whether a tribunal is obligated to make the Haida Determinations in a proceeding before it in which the Crown does not participate as a party. Accordingly, in my view, the principle established in Standing Buffalo continues to apply.
Is Standing Buffalo Distinguishable?
[50] The circumstances in Standing Buffalo are substantially the same as those in this appeal. 2015 FCA 222 (CanLII) In both instances, the Board was asked by Enbridge, a private-sector corporation, for an approval in respect of a pipeline project. In both instances, the Crown had no direct involvement with the proposed activities. In both instances, the First Nation stipulated that the Crown was under, but had not fulfilled, a Haida duty. In both instances, the First Nation asked the Board to hold the application before it in abeyance unless and until the Board was satisfied that the Crown’s asserted Haida duty has been met.
[51] Notwithstanding these similarities, the Appellant argues that Standing Buffalo is distinguishable on the basis that the application before the Board in that case was brought under section 52 of the NEB Act while the application in respect of the Project was brought under section 58 of the NEB Act.
[52] The Appellant asserts that because a section 52 approval is subject to a review and final approval by the Governor-in-Council, it is unnecessary for the Board to undertake the Haida
Determinations where the Crown does not participate in the section 52 proceeding. This is apparently so because the Governor-in-Council is in a position to overrule or suspend the section
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52 approval decision, should it decide to engage in a Haida duty consultation process. This assertion is unpersuasive.
[53] First, this alleged rationale for the decision in Standing Buffalo appears nowhere in the reasons in that case. Secondly, the Crown that allegedly has not yet engaged in Haida duty consultations could well be the Crown in right of a province. In Standing Buffalo, Saskatchewan intervened and argued that the Board lacked jurisdiction to undertake a Haida duty analysis in 2015 FCA 222 (CanLII) respect of the Crown in right of Saskatchewan (see also Fond du Lac Denesuline First Nation v.
Canada (Attorney General), 2010 FC 948 at paragraphs 230-231, 377 F.T.R. 50; aff’d on narrower grounds 2012 FCA 73).
[54] Thirdly, a review of the NEB Act, including sections 52 and 58 of the NEB Act, reveals nothing that addresses the question of whether the Board has the power to make Haida
Determinations. If that power exists it must be implicit in the Board’s ability to decide questions of law. Equally, nothing in the NEB Act directs or requires the Board to exercise such an implicit power in respect of an application under either sections 52 or 58 of the NEB Act where the
Crown is not a party to such an application. Indeed, subsection 52(2) of the NEB Act stipulates that the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and gives the Board a further discretion to consider the factors that are listed in paragraphs 52(2) (a) to (e) of the NEB Act. And, as this Court determined in Forest Ethics
Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, 465 N.R. 152, at paragraph 69, in considering the section 58 application in respect of the Project, the Board must consider issues similar to those stipulated in subsection 52(2) of the NEB Act and that in doing
Page: 17 so, the Board is empowered to determine the issues that it will consider. In that case, the Court upheld the Board’s determination that it was not required to consider affects associated with so- called “upstream” and “downstream” activities that were alleged to have been related to the
Project.
[55] Fourthly, it is the case that a section 52 approval will be subject to a further order by the
Governor-in-Council but a section 58 order will not. However, the apparent finality of a section 2015 FCA 222 (CanLII) 58 approval proceeding does nothing to assist the Board in making the Haida Determination when the Crown is not a participant in that proceeding. Such finality does not, in and of itself, establish that the constitutional issues embedded in the Haida Determinations are “properly before” (see Carrier Sekani at paragraph 69) the Board when the Crown itself is not a participant before the Board. Moreover, I find it difficult to understand how Parliament’s intention, when it enacted section 58 of the NEB Act to allow the Board to make final decisions in respect of matters falling under that section, should be construed in light of the Crown’s Haida duties when the date of enactment of that provision predates both the enactment of the Constitution Act and the enunciation of the Crown’s Haida duties in Haida Nation by over 45 years.
[56] In my view, the essential factual context in Standing Buffalo is indistinguishable from the factual context in this appeal. For that reason, it is my view that the principle established in
Standing Buffalo ought to be followed in this appeal. In that regard, I note that nowhere in any of the memoranda of law before this Court is there an argument that this Court should disavow its decision in Standing Buffalo, in accordance with the principles established in Miller v. Canada
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(Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149 (see also ViiV Healthcare ULC v. Teva
Canada Ltd., 2015 FCA 93 at paragraph 18, [2015] F.C.J. no. 455 (QL)).
The non-participation of the Crown
[57] The Crown decided not to participate in the Project approval proceedings before the
Board and no comprehensive explanation was put forward for that decision. It is possible that the
Crown was of the view that Enbridge’s application entailed no Crown conduct that could engage 2015 FCA 222 (CanLII) the Haida duty. If the Crown had appeared before the Board, this and other issues could have been argued. But that did not occur.
[58] In the final analysis, the Board determined that it would entertain Enbridge’s section 58 application without making the Haida Determinations. In doing so, in my view, it made no reviewable error.
Conclusion
[59] For the foregoing reasons, I conclude that the Board, in the absence of the Crown as a participant in the section 58 application in respect of the Project, was not required, as a precondition to its consideration of that application, to determine whether the Crown was under a
Haida duty, and if so, had discharged that duty, in respect of the Project.
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B. Was the Board under a Haida Duty?
Standard of Review
[60] The issue of whether the Board has the power to undertake and discharge a Haida duty on behalf of the Crown in respect of the Project is a question of law that is reviewable on the standard of correctness (Carrier Sekani at paragraph 67).
The Board’s Constitutional Duty 2015 FCA 222 (CanLII)
[61] It is clear that the Board is obligated to carry out its mandate in a manner that respects the provisions of subsection 35(1) of the Constitution Act.
[62] The Board’s mandate includes ensuring that the interests of Aboriginal groups in relation to the Project approval application are considered by it and by the Project proponent. In this regard, the Board required Enbridge to engage in extensive dialogue with the Appellant and other First Nations. In doing so, the Board ensured that it adhered to its constitutional obligations under subsection 35(1).
[63] It is important to note that the Board’s duty to ensure that appropriate levels of consultation with Aboriginal groups is not the same as the Crown’s Haida duty. That said, as a practical matter, consultations with Aboriginal groups that arise in the Board’s section 58 application process may very well deal with, and hopefully remediate if necessary, the same
Aboriginal concerns that arise when the Crown engages in Haida duty consultations. In other words, it should not matter whether a problem is solved in the Board’s consultation process or the Crown’s Haida duty consultation process.
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Did the Crown delegate its Haida duty to the Board?
[64] As informed by the Supreme Court in Haida Nation, and more recently in Carrier
Sekani, the Crown’s Haida duty can be delegated to a tribunal by appropriate legislation.
[65] None of the parties to this appeal argued that the NEB Act contained any provisions that gave rise to a delegation of the Crown’s Haida duty to the Board, and I have been unable to
discern any provision of that legislation that can be interpreted to produce such a delegation. 2015 FCA 222 (CanLII)
[66] While it is within the power of Parliament to require the Board to discharge the Crown’s
Haida duty, mandating the Board to perform such additional duties would require it to function outside its core areas of technical expertise. Moreover, it seems to me that requiring the Board to consult with First Nations on behalf of the Crown would make it very difficult, if not impossible, for the Board to then adjudicate – in its capacity as a quasi-judicial tribunal and a court of record
– upon the issue of the adequacy of those consultations. Perhaps these observations explain why
Parliament has not taken legislative steps to expand the jurisdiction of the Board by adding such additional duties.
The Crown Response Letter
[67] In the present circumstances, the Crown did not participate as a party to the application for Project approval. However, in the Crown Response Letter, the Minister of Natural Resources stated as follows:
In your letter, you reference the importance of Crown consultation with Aboriginal groups under section 35 of the Constitution Act, 1982. I can assure you that the Government of Canada is committed to meeting its legal duty to consult
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whenever it contemplates conduct that could adversely affect an established or potential Aboriginal or treaty right. Where a duty to consult exists, the federal Crown will meet its consultation obligations in an effective and meaningful manner.
Later in that letter, the Minister stated that:
The National Energy Board’s (NEB) regulatory review process is where the Government’s jurisdiction on a pipeline project is addressed. The Government relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate. The NEB provides an open,
comprehensive and participatory venue for all affected parties to express their 2015 FCA 222 (CanLII) project-related concerns and interests.
[68] I do not accept that this latter passage constitutes an effective delegation to the Board of the Crown’s responsibility for the performance of any portion of its Haida duty, if such a duty arose in relation to the Project. Carrier Sekani informs that the question of whether a tribunal has been given the power to carry out the Crown’s Haida duties is to be determined from a review of the legislation that creates the tribunal. This implies that an effective delegation by the Crown of its Haida duties requires legislation to that effect. I leave open the question of whether some formal type of disposition other than legislation could be employed by the Crown to produce an effective delegation of its Haida duties. Suffice it to say that, in my view, the Crown Response
Letter is insufficient to produce such a delegation, especially so when it is recalled that this letter was not sent until after the hearing before the Board ended.
[69] In my view, the existence of the Crown’s Haida duty, if any, and the fulfillment of that duty, should it be found to exist, are issues that should not be taken to have been determined by the decision of the Board. It follows that the existence and fulfillment of any Haida duty on the part of the Crown in respect of the Project are matters in respect of which there has been no
Page: 22 judicial pronouncement. For greater certainty, it is my view that the question of whether
Parliament’s enactment of the NEB Act, over 20 years before the enactment of the Constitution
Act and over 40 years before the decision in Haida Nation, could be said to constitute Crown conduct that is sufficient to trigger the Haida duty is not a matter that was decided by the Board.
If the enactment of the NEB Act constitutes the impugned Crown conduct and that conduct occurred over 60 years before the Project application, one is presented with the logical impossibility that the Haida consultations in respect of the Project were required to have taken 2015 FCA 222 (CanLII) place prior to the enactment of that legislation.
[70] In the same vein, one would wonder whether it can realistically be suggested that in enacting of the NEB Act, ‒ over 20 years before the enactment of the Constitution Act and over
40 years before the Haida duty to consult was enunciated by the Supreme Court ‒ the federal government was attempting “to avoid its duty to consult” (see paragraph 62 of Carrier Sekani).
[71] In contrast to the enactment of the NEB Act in the 1950’s the Province of Alberta recently enacted the Responsible Energy Development Act, S.A. 2012, c. R – 17.3. Section 21 of that legislation specifically states that the Alberta Energy Regulator has no authority to make the
Haida Determinations, seemingly indicating an intention on the part of that legislative body that such determinations must be made by the courts.
[72] At the hearing of this appeal, the Appellant acknowledged that the Crown Response
Letter could have been regarded as a refusal by the Crown to engage in consultations and that an application for judicial review could have been brought with respect to that refusal.
Page: 23
[73] Once before a court, the Haida Determinations could be made in the context of the evidence and arguments presented by the parties and an appropriate remedy sought. The panoply of potential available judicial remedies was described by the Supreme Court at paragraph 37 of
Carrier Sekani, as follows:
[37] The remedy for a breach of the duty to consult also varies with the situation. The Crown’s failure to consult can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out consultation prior to proceeding further with the proposed government conduct: Haida Nation, at paras. 13-14. 2015 FCA 222 (CanLII)
[74] The scope of the remedial powers of a court or judicial review would also extend to declaratory relief such as that which was proposed by the Yukon Court of Appeal in Ross River
Dena Council v. Government of Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100. In that case, the
Court recognized an acknowledgment from Crown counsel that the legislature of the Yukon might wish to make legislative amendments to address the consultation issues under consideration and, accordingly, it suspended the declarations that it was otherwise prepared to make. Such flexible relief can generally be provided by the Courts in judicial review proceedings.
[75] Indeed in the excerpt from the Request for Consultation Letter (reproduced in paragraph
11 above), the Appellant itself acknowledged a number of limitations on the jurisdiction of the
Board to address all of their concerns about the impact of the project on them. However, it is not obvious to me that the consequence of the absence of provisions in the NEB Act (enacted over 50 years ago) that would enable the Board to meaningfully remediate any established breach by the
Crown of its Haida duty ought to be that Enbridge’s Project approval application must be held up indefinitely.
Page: 24
[76] An application for judicial review in relation to the existence and fulfillment of a Haida duty was heard by the Federal Court in Brokenhead Ojibway Nation v. Canada (Attorney
General), 2009 FC 484, 345 F.T.R. 119 [Brokenhead].
[77] In that regard, the holding of Justice Barnes, at paragraph 37 of Brokenhead, is worthy of note:
[37] The Treaty One First Nations maintain that there must always be an
overarching consultation regardless of the validity of the mitigation measures that 2015 FCA 222 (CanLII) emerge from a relevant regulatory review. This duty is said to exist notwithstanding the fact that Aboriginal communities have been given an unfettered opportunity to be heard. This assertion seems to me to represent an impoverished view of the consultation obligation because it would involve a repetitive and essentially pointless exercise. Except to the extent that Aboriginal concerns cannot be dealt with, the appropriate place to deal with project-related matters is before the [Board] and not in a collateral discussion with either the [Governor-in-Council] or some arguably relevant Ministry.
[78] In other words, achieving practical solutions to project-related problems by recourse to the mainstream regulatory jurisdiction of the Board is a worthy objective that should be pursued.
Conclusion
[79] For the foregoing reasons, I conclude that there has been no delegation by the Crown to the Board, under the NEB Act or otherwise, of the power to undertake the fulfillment of any applicable Haida duty of the Crown in relation to the Project.
Page: 25
VI. DISPOSITION
[80] For the foregoing reasons, I would dismiss the appeal with costs to Enbridge. As neither the Crown nor the Board asked for costs, none will be awarded in their favour.
“C. Michael Ryer” J.A. 2015 FCA 222 (CanLII)
“I agree Wyman W. Webb J.A.”
Page: 26
RENNIE J.A. (Dissenting Reasons)
I. Overview
[81] A point of divergence arises between my colleagues and I with respect to the effect of Rio
Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650, 2010 SCC 43 on the responsibility of the Board to assess the adequacy of the Haida Nation v. British Columbia
(Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 consultation. My colleagues have found
that in the absence of the Crown as a party to the proceedings before the Board, it is not required 2015 FCA 222 (CanLII) to undertake the Haida analysis as a precondition to the exercise of its regulatory oversight jurisdiction. This result is predicated on the previous decision of this Court in Standing Buffalo
Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308.
[82] In my view, the foundation on which Standing Buffalo was predicated has been altered by
Carrier Sekani, such that it no longer ought to be followed. At a minimum, the factual and legal contexts in this appeal are markedly different from those in Standing Buffalo so as to require re- consideration of that decision. Insofar as this appeal raises the question of the role of a tribunal in respect of the duty to consult in circumstances where the Crown is not a party to the proceedings and the tribunal is the final decision maker, we are in uncharted waters.
II. The factual context
[83] On April 8, 1975, the Government of Canada entered into an agreement with
Interprovincial Pipe Line Inc. (IPL) to construct a pipeline from Sarnia to Montréal (the
Montréal Extension) in order to transport crude oil from western sources to eastern refineries.
The Montréal Extension, now known as Line 9, was opened on June 4, 1976; Line 9 was built
Page: 27 without the Crown having consulted with the Chippewas of the Thames First Nation (the
Chippewa).
[84] IPL reached an agreement with the Government of Canada on June 4, 1996, whereby IPL would continue to own and operate Line 9, and Canada was released from its rights and obligations under previous agreements. 2015 FCA 222 (CanLII) [85] On November 29, 2012, Enbridge Pipelines Inc. (Enbridge), as the current owner and operator of Line 9, filed its application to the Board seeking approval to reverse the direction of flow for the 639 kilometer segment of Line 9 from North Westover, Ontario to Montréal (Line
9B), Québec, and to increase the annual capacity of Line 9 from the current 240,000 barrels of diluted bitumen per day to 300,000 barrels of heavy crude per day.
[86] Line 9 is located in the traditional territory of the Chippewa and crosses the Thames
River, from which the Chippewa and their ancestors have harvested resources. The Chippewa have Aboriginal and treaty rights in the Thames watershed, and assert an undetermined claim of title over the bed of the Thames River and its resources.
[87] On September 27, 2013, in advance of the Board’s public hearings in regards to
Enbridge’s application, Chief Joe Miskokomon of the Chippewa and Chief Christopher Plain of the Aamjiwnaang First Nation (AFN) sent a letter to the Prime Minister, the Minister of
Aboriginal Affairs and Northern Development Canada, and the Minister of Natural Resources.
The letter listed concerns relating to a breach of their Aboriginal and treaty rights, and
Page: 28 specifically raised the issue of the Crown’s failure to consult the respective First Nations about the proposed project:
Despite being clearly subject to this constitutional duty, the federal Crown has failed to consult us about the Project.
Unless you take the actions requested of you in this letter, there will be no opportunity in the future for the Crown to consult with AFN and [the Chippewa] about the Project. […] The [Board] has the authority under s. 58 of the [Act] to make orders granting the exemptions without consulting you or the Governor-in- Council, meaning that there will be no further opportunities in the current regulatory approvals process for the Project for the federal Crown to consult with
AFN and [the Chippewa]. 2015 FCA 222 (CanLII)
[88] The Chippewa fully participated in the hearings before the Board and received generous funding in support. The Board’s hearing process closed on October 18, 2013. It was not until
January 30, 2014 that the Minister of Natural Resources (the Minister) replied to the Chiefs’ letter. The Minister wrote:
I can assure you that the Government of Canada is committed to meeting its legal duty to consult whenever it contemplates conduct that could adversely affect an established or potential Aboriginal or treaty right. Where a duty to consult exists, the federal Crown will meet its consultation obligations in an effective and meaningful manner.
[…]
The National Energy Board’s (NEB) regulatory review process is where the Government’s jurisdiction on a pipeline project is addressed. The Government relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate.
[89] Before the Board, the appellant repeated its request that the Minister attend the hearings so as to engage in consultations. The requests were not answered. Unlike Standing Buffalo where there had been many years of unproductive discussions between the First Nation and the Crown, here there have been none.
Page: 29
[90] It is important, in my view, not to conflate the substantive legal questions which underlie this appeal with the degree to which aboriginal title and treaty interests may be affected by Line
9. In order for the duty to consult to be engaged, the action must have an appreciable, adverse effect on the ability to exercise aboriginal rights; Carrier Sekani, para. 46. Here, the effects may in fact, be minimal. The Board found as much. Enbridge’s section 58 application is to reverse the flow of the pipeline to its original direction and to change the content and volume of the line. But that is not the point. What is in issue is the question of the duty to consult where a tribunal is the 2015 FCA 222 (CanLII) final decision maker.
III. The legislative context
[91] The appeal in Standing Buffalo arose from three decisions of the Board that granted applications for approvals in respect of three pipeline projects pursuant to section 52 of the NEB
Act. A company is not permitted to operate a pipeline unless the Board has issued a certificate under section 52 of the NEB Act.
[92] Decisions made pursuant to section 52 are not final. Rather, section 52 approval is a stop en route to the Governor in Council, the ultimate decision maker. Section 54 of the NEB Act allows the Governor in Council to either direct the Board to issue a certificate or to dismiss the application for a certificate. Thus, in Standing Buffalo, the role of the Board as a final decision maker with respect to the duty to consult was not engaged. A Crown decision or Crown action, in the form of the Governor in Council decision pursuant to section 54 awaited, clearly triggering the duty to consult.
Page: 30
[93] This appeal, however, arises from a decision of the Board to approve an application by the respondent under section 58 of the NEB Act. Section 58 enables the Board to exempt a proposed expansion or extension to an existing pipeline from the requirement of obtaining a new certificate. Additions or modifications to existing physical facilities qualify for a section 58 exemption where they involve 40 kilometers or less of existing pipeline.
[94] Importantly, subject to appeal to this Court with leave, the decision of the Board is final. 2015 FCA 222 (CanLII) The Minister has no power to direct the Board to revise or amend its decision. This is apparent on the face of the legislation, and was confirmed by counsel at the hearing of this appeal.
[95] The legislative framework which underlies this appeal is, therefore, markedly different than that of Standing Buffalo. In Standing Buffalo, final decision making powers remained with the Governor in Council, and therefore there was no question of Crown action or conduct. Here, in a section 58 proceeding, the Board is the ultimate decision maker.
IV. Tribunals and the duty to consult
A. The duty to consult
[96] In order to situate the issue in this appeal a brief re-capitulation of the role of tribunals in relation to the duty to consult is in order.
[97] The question was first considered in 1994 by the Supreme Court of Canada in Québec
(Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159. In that case, the affected First Nation relied on the duty to consult as a basis for arguing that the NEB was subject
Page: 31 to a heightened level of procedural fairness. Justice Iacobucci, delivering the judgment of the
Court, rejected this argument and held that the duty to consult did not attach to quasi-judicial tribunals such as the NEB, as the duty to consult was based on the fiduciary duties owed to
Aboriginal peoples as part of the honour of the Crown. Therefore, an imposition of such a duty on an independent tribunal would be inconsistent with the requirement of neutrality towards the parties to proceedings. 2015 FCA 222 (CanLII) [98] A decade later, in 2004, the Supreme Court of Canada re-characterized the nature of the duty to consult. In Haida, the Court held that the duty arose from the honour of the Crown, and was not subsumed within the various fiduciary obligations owed by the Crown. It was, rather, an independent element of the honour of the Crown: Haida at paras. 18-20. This conclusion, and other indicators within the judgment, led academics to opine that the “particular theory on which the Court had based its rejection of the First Nation’s argument in the 1994 National Energy
Board case no longer held.” That is, the concept of independence “was no longer an impediment to the imposition of the duty to consult on judicial and quasi-judicial tribunals” (see David
Mullan, The Supreme Court and the Duty to Consult Aboriginal Peoples: A Lifting of the Fog?
(2011) 24 CJALP 233 at 251-252).
[99] In 2009 this Court, in Standing Buffalo, relied on the 1994 National Energy Board case for the finding that as a “quasi-judicial body”, the NEB was not itself under a Haida duty. The
Court also held that the NEB had no statutory obligation to analyze and determine whether the
Crown’s duty to consult had been triggered and discharged in respect of project applications:
Standing Buffalo at paras. 34 and 39.
Page: 32
B. Carrier Sekani
[100] The ultimate legal responsibility for consultation and accommodation will always remain with the Crown. However, procedural aspects of the duty to consult may be delegated: Haida at para. 53. Thus, in Carrier Sekani, the Court held that whether a tribunal has the jurisdiction to consider the adequacy of consultation, or to carry out consultation itself, depends on the mandate conferred by the legislation that establishes the tribunal. On this basis alone, Carrier Sekani
mandates re-visiting the conclusion reached in Standing Buffalo. 2015 FCA 222 (CanLII)
[101] The Court saw a clear demarcation between two duties – the jurisdiction to inquire as to the existence of a duty to consult and whether the consultations between the Crown and the respective First Nation were adequate, and the separate ability of the tribunal to conduct the consultations itself.
[102] The former can be implied from the ability to decide questions of law. That is, in determining whether a tribunal has the power to make a determination regarding adequacy of consultation, the Court in Carrier Sekani held that “[t]he power to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal’s power”: Carrier Sekani at para. 69. This holding is inconsistent with Standing Buffalo which held that a tribunal must be explicitly conferred the power to undertake a Haida analysis.
[103] In sum, the language of Carrier Sekani is unequivocal; the Board was required to consider whether consultation was required and whether it had taken place.
Page: 33
[104] The majority places considerable weight on the limited engagement of the Crown in the proceedings in respect of Line 9. In my view, Carrier Sekani changes the question from being whether the Crown is seeking relief or permission from the Board (as was BC Hydro), to one that focuses on the legislative mandate given the Board by Parliament. Whether or not the Crown shows up at regulatory proceedings cannot alter the responsibilities of the Board with respect to the Crown’s duty of consultation (see Promislow, J., Irreconcilable? The Duty to Consult and
Administrative Decision Makers Constitutional Forum Volume 22, Number 1, 2013). The 2015 FCA 222 (CanLII) Board’s jurisdiction to assess consultation does not vary according to project proponent. This conclusion makes sense because at a practical level, the section 58 process culminates with a final decision, and any Aboriginal or treaty rights that might be affected by the proposed project are affected in the same way, regardless of the project proponent.
[105] Further, in Carrier Sekani, the Supreme Court of Canada “left for another day” the question as to whether a legislative action itself triggers the duty to consult or offends section 35 of the Constitution Act. In the particular circumstances of this case, the requirement of Crown conduct is satisfied by the regulatory regime which makes the Board the final decision maker.
The duty to consult is rooted in section 35 of the Constitution Act, and it cannot be avoided by the Crown refusing to engage until it is too late in the decision making process or by delegating the final decision making to a tribunal. The duty, like the honour of the Crown, does not evaporate simply because a final decision has been made by a tribunal established by Parliament, as opposed to Cabinet.
Page: 34
C. The application of Carrier Sekani to the NEB
[106] The Board must have, and exercise, the power to assess whether the duty to consult has been fulfilled, and to refuse to grant an approval if there is an unfulfilled duty to consult; otherwise the section 58 regime allows for the approval of projects which may adversely affect
Aboriginal rights without the Crown ever consulting with the Aboriginal group in question. A project proponent can apply, go through the NEB's hearing process, and receive approval. The
Crown can remain silent, on the sidelines. No consultation with the Crown need occur at any 2015 FCA 222 (CanLII) point. Indeed, the Crown lacks the statutory authority to prevent an application from being approved by the Board, even if it should want to.
[107] This may be contrasted with the regime under section 52, where (pursuant to section 54) the Governor in Council has the final say. This moment of Crown involvement is crucial, because it is obvious in the section 52 and 54 scenario that it would violate the Crown's Haida obligations for the Governor in Council to grant final approval without consulting. In the present case, however, Parliament has set up a scheme where infringing projects may be approved without Crown consultation.
[108] In Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, the Yukon Court of
Appeal considered an analogous situation. Under the Quartz Mining Act, SY 2003, c 14 (Quartz
Mining Act), an individual acquires mineral rights by physically staking a claim and then recording it with the Mining Recorder. The Mining Recorder had no discretion to refuse to record a claim that complied with the statutory requirements. The Government of Yukon argued
Page: 35 that the recording of a mineral claim was not “contemplated Crown conduct” and therefore there was no duty to consult.
[109] The Court of Appeal rejected this argument, and held at paragraph 37 that “[s]tatutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.” The Court of Appeal issued declarations that the Government of Yukon has a duty to 2015 FCA 222 (CanLII) consult; however it also noted that the Government of Yukon “may well wish to make statutory and regulatory changes in order to provide for appropriate consultation.” The Court suspended its declarations for one year to allow for amendments to the Quartz Mining Act. Leave to appeal was refused (Docket: 35236, September 19, 2013).
[110] The Mining Recorder, whose duties were essentially clerical, had no statutory authority to decide questions of law, including the question of whether a Haida duty existed. There was thus no way to close the loophole. If the Board is found to be similarly lacking in competence, then section 58 would be similarly infirm. This, however, is not the case; the Board had the power to consider the issue of Haida duties. The NEB legislation avoids the problems of the
Quartz Mining Act because the NEB can check to make sure the duty to consult has been fulfilled.
[111] Applying this reasoning, the Board should have considered whether there was a duty to consult, and if so whether it had been fulfilled, and granted approval only if there were no unfulfilled duty to consult. If the board had understood that it had this power, and exercised it, it
Page: 36 would have been consistent with the duty to consult, which, it must be remembered, is derived from section 35 of the Constitution Act.
[112] As a final decision maker, Carrier Sekani requires the Board to ask, in light of its understanding of the project and aboriginal title and treaty interests, whether the duty to consult was trigged. If so, it was required to ask whether the consultations had taken place. The answers to those two questions, on the facts of this case were respectively affirmative and negative. 2015 FCA 222 (CanLII) Given its understanding that there was an outstanding unfulfilled duty to consult, it ought not to have rendered its approval.
[113] The majority view this result as unfair to a proponent, who should not be caught in the middle of a ministerial refusal to consult and an inchoate and perhaps unreasonable expectation by the band as to the fruits of that consultation.
[114] There are several answers to this. First, it is important to recall what is in issue. The duty to consult with Aboriginal peoples and accommodate their interests is a constitutional duty invoking the honour of the Crown, which requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstance: Tsilhqot'in Nation v. British Columbia,
[2014] 2 S.C.R. 256, 2014 SCC 44; Carrier Sekani; Haida at para. 41. The inconvenience to the proponent pales when measured against that principle.
[115] Second, from a practical standpoint, the courts are available to determine whether the duty to consult has been discharged. This is routine business.
Page: 37
[116] Third, the problem could have been avoided had the Minister followed the direction of this Court and the Supreme Court. Recall that it was on January 30, 2014, three and on half months after the hearing concluded, and a month before the Board decision was publically released (March 6, 2014), that the Minister stated his position.
[117] The consultation process is reciprocal and cannot be frustrated by the refusal of either party to meet or participate: Brokenhead Ojibway First Nation v. Canada (Attorney General), 2015 FCA 222 (CanLII) 2009 FC 484, at para. 42 citing Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008
FCA 212 at paras. 52-53. Consultation itself is a distinct constitutional process “requiring powers to effect compromise and do whatever is necessary to achieve reconciliation of divergent Crown and Aboriginal interests”: Carrier Sekani at para. 74. The “common thread on the Crown's part must be 'the intention of substantially addressing [Aboriginal] concerns as they are raised' through a meaningful process of consultation”: Haida at para. 42 citing Delgamuukw v. British
Columbia, [1997] 3 S.C.R. 1010 at para. 168. Responsiveness is key and the Crown, even where a duty to consult is at the low end of the spectrum, is required to engage directly with the affected First Nation: Taku River Tlingit First Nation v. British Columbia (Project Assessment
Director), [2004] 3 S.C.R. 550, 2004 SCC 74, at para. 25; Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69, at para. 64.
[118] Fourth, on the majority understanding of Carrier Sekani, consultation in this context becomes an afterthought, precisely what the Supreme Court criticized in Mikisew Cree, at para.
64 per Binnie J. The substantive content of consultations and the options available to both parties
Page: 38 would also be constrained to monetary compensation - an outcome inconsistent with the objective of reconciliation which underlies the duty to consult.
[119] Finally, public policy interests are better served if consultation moves in parallel with established regulatory proceedings. As Kirk N. Lambrecht, Q.C. wrote in Aboriginal
Consultation, Environmental Assessment, and Regulatory Review in Canada (Regina: University of Regina Press, 2013), the identification of aboriginal interests and engagement of communities 2015 FCA 222 (CanLII) early in the decision making process enhances positive and respectful relationships and dialogue, by elements of reconciliation. In my respectful view, the result proposed in this case creates a disincentive to timely, good faith and pragmatic consultations, and undermines the overarching objective of reconciliation.
[120] For even further clarity, none of this is to say that the Board had the duty or power to actually perform the consultation. It is a point of agreement between myself and the majority, and indeed between the parties, that the Board is incapable of actually fulfilling the duty to consult. To the extent that the Minister purported to rely on the Board to fulfill the duty to consult, he did so in error. The Board's duty, instead, was simply to ensure that when consultation had not occurred, it did not discharge its mandate.
D. Remedies
[121] As noted at the outset, this case raises novel issues with respect to the duty to consult where a tribunal is the final decision maker. This is equally so with respect to remedy. Again, we are sailing in uncharted waters. The Board was required, by Carrier Sekani, to ask whether the
Page: 39 duty to consult had been triggered and if so, whether the consultation had been adequate. Had it asked those questions it would have found that, as a final decision maker of the project which would affect aboriginal interests, the duty was triggered. As the Minister did not engage, it could not answer the second in the affirmative.
(1) Judicial review
[122] The majority concluded that the Minister’s response letter dated January 30, 2014, can be 2015 FCA 222 (CanLII) taken as a refusal by the Crown to engage in Haida consultations. At the hearing of this appeal, the Minister agreed that judicial review of the letter, as a Crown decision, is open to the appellant
(presumably declaratory, injunctive or other relief under section18.1 of the Federal Courts Act
(R.S.C., 1985, c. F-7) or Rule 372 and following of the Federal Courts Rules). In such a proceeding, however, the Minister stated that he would assert that the Board proceeding “entirely discharges” the duty to consult.
[123] Judicial review of the Minister’s letter, in the circumstances, is an empty remedy. The
Minister ultimately has no power in respect of the section 58 order. The decision of the Board is final. A final decision in respect of the section 58 application was made by the Board on March
6, 2014. The Minister does not propose to do anything and has no power in respect of the decision. There is nothing to be enjoined, quashed or compelled.
[124] Substantively, any consultation or accommodation which might flow from a successful judicial review would be too late. The direction from the Supreme Court is that if consultation is to be meaningful it must take place at the stage of the grant or renewal of the licence or permit in
Page: 40 question. That is, consultation must be timely: see Carrier Sekani at para. 35; Haida at para. 76;
Sambaa K'e Dene First Nation v. Duncan, 2012 FC 204 at para. 165; The Squamish Nation et al v. The Minister of Sustainable Resource Management et al, 2004 BCSC 1320 at paras. 74-75; and Gitxaala Nation v. Canada (Transport, Infrastructure and Communities), 2012 FC 1336 at para. 40.
[125] The suggestion that the only remedy lies in an after-the-fact judicial review of a 2015 FCA 222 (CanLII) Minister’s letter is inconsistent with the Supreme Court in Tsilhqot'in at paragraph 78 where the
Court reiterated that the duty to consult “must be discharged prior to carrying out the action that could adversely affect the right.” According to the jurisprudence, the duty to consult should have been discharged prior to the issuance of a section 58 order. This can be achieved by requiring the
Board to ask the questions required by Carrier Sekani.
(2) Declaratory relief
[126] There is a gap in the regulatory scheme and the section 58 approvals process which allows the duty to consult, by design or otherwise, to fall through the cracks. The appellant was attuned to this as evidenced by the September 27, 2013 letter sent from Chief Miskokomon and
Chief Plain to the Prime Minister, the Minister of Aboriginal Affairs and Northern Development
Canada and the Minister of Natural Resources Canada:
There is a gap in the current approvals process for the Project which has resulted in the Crown failing to consult with AFN, COTTFN, and other Aboriginal peoples whose rights may be severely impacted by the Project. It is incumbent on you to act immediately and honourably fill that gap by initiating consultation with each of AFN and COTTFN now.
Page: 41
[127] The mischief foreshadowed by the Supreme Court at paragraph 62 in Carrier Sekani has thus, in this case, materialized:
The fact that administrative tribunals are confined to the powers conferred on them by the legislature, and must confine their analysis and orders to the ambit of the questions before them on a particular application, admittedly raises the concern that governments may effectively avoid their duty to consult by limiting a tribunal’s statutory mandate. The fear is that if a tribunal is denied the power to consider consultation issues, or if the power to rule on consultation is split between tribunals so as to prevent any one from effectively dealing with consultation arising from particular government actions, the government might effectively be able to avoid its duty to consult. 2015 FCA 222 (CanLII) [Emphasis added]
[128] Declaratory relief similar to that obtained in Ross River was not sought in this Court, nor was the point argued. It would be inappropriate to resort to it in these circumstances. Indeed, it is unnecessary, as the Board has the legislative mandate to ask the questions mandated by Carrier
Sekani and ensure that consultation is discharged before it makes a final decision.
[129] I would therefore allow the appeal with costs.
“Donald J. Rennie” J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-358-14
APPEAL FROM A DECISION OF THE NATIONAL ENERGY BOARD DATED MARCH 6, 2014 (DOCKET NUMBER OH-002-2013)
STYLE OF CAUSE: CHIPPEWAS OF THE THAMES FIRST NATION v. ENBRIDGE PIPELINES INC., AND THE
NATIONAL ENERGY BOARD 2015 FCA 222 (CanLII) AND ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 16, 2015
REASONS FOR JUDGMENT BY: RYER J.A.
CONCURRED IN BY: WEBB J.A.
DISSENTING REASONS BY: RENNIE J.A.
DATED: OCTOBER 20, 2015
APPEARANCES:
David Nahwegahbow FOR THE APPELLANT Scott Robertson
Joshua Jantzi FOR THE RESPONDENT, Doug Crowther ENBRIDGE PIPELINES INC.
Rebecca Brown FOR THE RESPONDENT, THE NATIONAL ENERGY BOARD Peter Southey FOR THE RESPONDENT, Dayna Anderson ATTORNEY GENERAL OF Sarah Bird CANADA
Page: 2
SOLICITORS OF RECORD:
Nahwegahbow, Corbiere FOR THE APPELLANT Rama, Ontario
Dentons Canada LLP FOR THE RESPONDENT, Calgary, Alberta ENBRIDGE PIPELINES INC.
National Energy Board FOR THE RESPONDENT, THE Calgary, Alberta NATIONAL ENERGY BOARD
William F. Pentney FOR THE RESPONDENT, Deputy Attorney General of Canada ATTORNEY GENERAL OF
CANADA 2015 FCA 222 (CanLII)
Date: 20141031
Docket: A-273-13
Citation: 2014 FCA 245
CORAM: TRUDEL J.A. STRATAS J.A. NEAR J.A.
BETWEEN: 2014 FCA 245 (CanLII)
FOREST ETHICS ADVOCACY ASSOCIATION and DONNA SINCLAIR
Applicants
and
THE NATIONAL ENERGY BOARD, THE ATTORNEY GENERAL OF CANADA AND ENBRIDGE PIPELINES INC.
Respondents
and
COUNCIL OF CANADIANS – THUNDER BAY CHAPTER
Intervener
Heard at Toronto, Ontario, on October 27, 2014.
Judgment delivered at Ottawa, Ontario, on October 31, 2014.
Page: 2
REASONS FOR JUDGMENT BY: STRATAS J.A.
CONCURRED IN BY: TRUDEL J.A. NEAR J.A. 2014 FCA 245 (CanLII)
Date: 20141031
Docket: A-273-13
Citation: 2014 FCA 245
CORAM: TRUDEL J.A. STRATAS J.A. NEAR J.A.
BETWEEN: 2014 FCA 245 (CanLII)
FOREST ETHICS ADVOCACY ASSOCIATION AND DONNA SINCLAIR
Applicants
and
THE NATIONAL ENERGY BOARD, THE ATTORNEY GENERAL OF CANADA AND ENBRIDGE PIPELINES INC.
Respondents
and
COUNCIL OF CANADIANS – THUNDER BAY CHAPTER
Intervener
REASONS FOR JUDGMENT
STRATAS J.A.
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[1] The applicants, Forest Ethics Advocacy Association and Ms. Sinclair, apply for judicial review of three interlocutory decisions of the National Energy Board. The Board made these decisions as part of a larger proceeding before it.
[2] In these interlocutory decisions, the Board devised a process to determine who could participate in the larger proceeding, ruled that certain issues were irrelevant and would not be considered in the larger proceeding, and denied the Applicant, Ms. Sinclair, participation in the 2014 FCA 245 (CanLII) larger proceeding.
[3] In this Court, Forest Ethics and Ms. Sinclair challenge the interlocutory decisions on two bases: the constitutional guarantee of freedom of expression in section 2(b) of the Canadian
Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, Schedule B to the Canada
Act 1982 (UK), 1982, c 11) and administrative law unreasonableness.
[4] For the reasons set out below, I would dismiss the application for judicial review with costs. The applicants cannot raise the Charter issue for the first time on judicial review. Further, the three interlocutory decisions are reasonable.
A. The facts
(1) The larger proceeding before the Board
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[5] In the larger proceeding, the respondent, Enbridge Pipelines Inc., asks the Board for approval and certain relief concerning a pipeline project known as the Line 9B Reversal and Line
9 Capacity Expansion Project.
[6] The larger proceeding has now concluded and the Board has released its decision (no.
OH-002-2013). The Board has approved the pipeline project on certain conditions. 2014 FCA 245 (CanLII) (2) The Board’s interlocutory decisions
[7] As mentioned above, in this Court the applicants challenge three interlocutory decisions made by the Board. The following are the decisions and the applicants’ position in this Court on each.
– I –
[8] The irrelevance of certain issues. The Board ruled that in the larger proceeding before it, it would not consider the environmental and socio-economic effects associated with upstream activities, the development of the Alberta oil sands, and the downstream use of oil transported by the pipeline. To the Board, these issues were irrelevant.
[9] Subsection 52(2) of the National Energy Board Act, R.S.C. 1985, c. N-7 underpins the
Board’s decision. Among other things, it requires the Board to “have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant.” Subsection 52(2) provides as follows:
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52. (2) In making its recommendation, 52. (2) En faisant sa recommandation, the Board shall have regard to all l’Office tient compte de tous les considerations that appear to it to be facteurs qu’il estime directement liés directly related to the pipeline and to au pipeline et pertinents, et peut tenir be relevant, and may have regard to compte de ce qui suit : the following:
(a) the availability of oil, gas or a) l’approvisionnement du pipeline any other commodity to the en pétrole, gaz ou autre produit; pipeline;
(b) the existence of markets, actual b) l’existence de marchés, réels ou or potential; potentiels; 2014 FCA 245 (CanLII) (c) the economic feasibility of the c) la faisabilité économique du pipeline; pipeline;
(d) the financial responsibility and d) la responsabilité et la structure financial structure of the applicant, financières du demandeur et les the methods of financing the méthodes de financement du pipeline and the extent to which pipeline ainsi que la mesure dans Canadians will have an laquelle les Canadiens auront la opportunity to participate in the possibilité de participer au financing, engineering and financement, à l’ingénierie ainsi construction of the pipeline; and qu’à la construction du pipeline;
(e) any public interest that in the e) les conséquences sur l’intérêt Board’s opinion may be affected public que peut, à son avis, avoir by the issuance of the certificate or la délivrance du certificat ou le the dismissal of the application. rejet de la demande.
[10] In this Court, the applicants submit that the Board’s decision to remove certain issues from the table was unreasonable. In their view, the National Energy Board Act and, in particular, subsection 52(2) of the Act require the Board to consider the larger environmental effects of the project. These include the contribution to climate change made by the Alberta oil sands and facilities and activities upstream and downstream from the pipeline project.
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[11] Further, in the applicants’ submission, the Board’s decision prevented the parties from expressing themselves before the Board on this issue, thereby violating their freedom of expression protected by section 2(b) of the Charter.
– II –
[12] The process to determine participation rights. The Board required parties who wished to 2014 FCA 245 (CanLII) participate in the larger proceeding to provide certain information in an Application to
Participate Form. The Board considered this information relevant to and necessary for the exercise of its discretion concerning participation rights under section 55.2 of the National
Energy Board Act, supra.
[13] Section 55.2 has a mandatory part and a discretionary part. In the mandatory part, the
Board must consider representations from parties directly affected by the application before it. In the discretionary part, the Board may permit others with relevant information or expertise to make representations. Section 55.2 reads as follows:
55.2 On an application for a 55.2 Si une demande de certificat est certificate, the Board shall consider présentée, l’Office étudie les the representations of any person who, observations de toute personne qu’il in the Board’s opinion, is directly estime directement touchée par la affected by the granting or refusing of délivrance du certificat ou le rejet de the application, and it may consider la demande et peut étudier les the representations of any person who, observations de toute personne qui, in its opinion, has relevant information selon lui, possède des renseignements or expertise. A decision of the Board pertinents ou une expertise appropriée. as to whether it will consider the La décision de l’Office d’étudier ou representations of any person is non une observation est définitive. conclusive.
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[14] In this Court, the applicants submit that section 55.2 offends the guarantee of freedom of expression in the Charter. They seek a declaration that section 55.2 is of no force or effect under subsection 52(1) of the Constitution Act, 1982.
– III –
[15] The applicant Sinclair’s participation. On the facts before it, the Board denied the 2014 FCA 245 (CanLII) applicant, Ms. Sinclair, participation in the larger proceeding.
[16] In this Court, the applicants submit that the Board failed to take into account the constitutional value of freedom of expression and unconstitutionally prevented Ms. Sinclair from expressing herself.
[17] Quite aside from the constitutional issues involved, the applicants also submit that the
Board’s decision was substantively unreasonable because Ms. Sinclair had information and expertise relevant to the issues the Board had to consider. She stated that she had a specified and detailed interest in the matter before the Board based on her religious faith. In her view, a spill from a pipeline, even far away from her home, is “an insult to [her] sense of the holy.” As for information and expertise, she invoked her experience with aboriginal peoples, her involvement in apologies to aboriginal peoples, and her work exploring the relationship between aboriginal peoples and the land. She also intended to discuss the environmental record of the proponent of the pipeline project, how the relationship of aboriginal people to the land has influenced her faith, and the importance of consultation with aboriginal peoples.
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[18] In all, the Board received 177 Application to Participate Forms and granted 158 applicants the participation rights they sought. It granted a further eleven the opportunity to submit a letter of comment. Ms. Sinclair was one of only eight whom the Board denied any opportunity to participate in any way.
(3) The interlocutory nature of the decisions 2014 FCA 245 (CanLII) [19] In this application for judicial review, the Board has intervened. It was open to the Board to object to the application on the basis of prematurity and to submit that this Court should not review the three interlocutory decisions until after the Board has finally decided the larger proceeding. However, the Board has not objected.
[20] Further, both the respondent Enbridge and the Attorney General object only to the constitutional issues being heard, in part on the ground that it is premature to do so. They do not object on the basis of prematurity generally.
[21] Perhaps the parties are not objecting because the Board has now decided the larger proceeding. The usual concerns about large proceedings being bifurcated and delayed may not exist here.
[22] I note that, for good reason, much law forbids this Court from hearing premature matters on judicial review: see, e.g., Canada (Border Services Agency) v. C.B. Powell Limited, 2010
FCA 61, [2011] 2 F.C.R. 332 at paragraphs 30-33. As that case demonstrates, this Court can and almost always should refuse to hear a premature judicial review on its own motion in the public
Page: 8 interest – specifically, the interests of sound administration and respect for the jurisdiction of an administrative decision-maker.
[23] As I have noted, however, the Board – the main guardian of the public interest in this regulatory area – has chosen to intervene and does not assert the prematurity objection. This
Court will not apply the prematurity bar in this case because of the position the Board has taken and the need for this Court to defer to the Board’s implicit assessment that the public interest is 2014 FCA 245 (CanLII) not hurt by reviewing the interlocutory decisions in this case.
(4) The applicants’ request for an adjournment
[24] Before the hearing of this application for judicial review, this Court noted that the applicants had not raised the Charter issue before the Board. It directed the parties to address certain cases concerning whether the applicants could raise the Charter issue for the first time in this Court.
[25] Soon afterward, the applicants drew to this Court’s attention a recent decision of the
Board: Re: Trans Mountain Expansion Project (2 October 2014), Hearing Order OH-001-2014,
File No. OF-Fac-Oil-T260-2013-03 02. In that decision, the Board dismissed a challenge to section 55.2 based on the Charter guarantee of freedom of expression. The applicants asked that the present applications be adjourned and heard with the challenge to section 55.2 in the Trans
Mountain matter.
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[26] In response, this Court issued a further direction to the parties. In its direction, it advised that it would hear the parties in the present applications on two issues:
(a) whether the applicants are barred from seeking Charter relief on the application
for judicial review because they did not raise the Charter before the National
Energy Board; and 2014 FCA 245 (CanLII) (b) whether the National Energy Board’s decision should be quashed for
unreasonableness (i.e., the submissions contained in the applicants’ memorandum,
at paragraphs 89-95).
In its direction, the Court advised the parties that if it decided these issues against the applicants, the judicial review would be dismissed.
[27] This Court heard the parties on these two issues. The following is my analysis of these two issues.
B. Analysis
(1) Are the applicants barred from seeking Charter relief because they did not raise the Charter before the National Energy Board?
[28] In my view, the applicants are indeed barred from seeking Charter relief in the present applications before this Court. Forest Ethics is barred for two reasons; Ms. Sinclair is barred for one.
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(a) Forest Ethics lacks standing
[29] Under subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, only those who are “directly affected” can ask this Court to review a decision.
[30] Forest Ethics is not “directly affected” by the Board’s decisions. The Board’s decisions do not affect its legal rights, impose legal obligations upon it, or prejudicially affect it in any way: 2014 FCA 245 (CanLII) League for Human Rights of B'Nai Brith Canada v. Odynsky, 2010 FCA 307, 409 N.R. 298;
Rothmans of Pall Mall Canada Ltd. v. Canada (M.N.R.), [1976] 2 F.C. 500 (C.A.); Irving
Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116, [2010] 2 F.C.R.488. Therefore, Forest Ethics does not have direct standing to bring an application for judicial review and invoke the Charter against the Board’s decisions.
[31] In oral argument, Forest Ethics submitted that it had status in this Court as a litigant with public interest standing.
[32] However, Forest Ethics falls well short of establishing that it satisfies the criteria for public interest standing: Canada (Attorney General) v. Downtown Eastside Sex Workers United
Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524 at paragraph 37 and the more detailed discussion at paragraphs 39-51.
[33] Indeed, in this application and on this record, Forest Ethics is a classic “busybody,” as that term is understood in the jurisprudence. Forest Ethics asks this Court to review an administrative decision it had nothing to do with. It did not ask for any relief from the Board. It
Page: 11 did not seek any status from the Board. It did not make any representations on any issue before the Board. In particular, it did not make any representations to the Board concerning the three interlocutory decisions.
[34] The record filed by Forest Ethics does not show that it has a real stake or a genuine interest in freedom of expression issues similar to the one in this case. Further, a judicial review brought by Forest Ethics is not a reasonable and effective way to bring the issue before this 2014 FCA 245 (CanLII) Court. Forest Ethics’ presence is not necessary – Ms. Sinclair, represented by Forest Ethics’ counsel, is present and is directly affected by the Board’s decision to deny her an opportunity to participate in its proceedings.
[35] Also, as is seen from the adjournment request, discussed above, the issue before this
Court is not evasive of review – others can be expected to raise the issue and, indeed, are now raising it.
[36] If Forest Ethics were allowed to bring an application for judicial review in these circumstances, it and similar organizations would be able to bring an application for judicial review against any sort of decision anywhere at any time, pre-empting those who might later have a direct and vital interest in the matter. That is not the state of our law.
(b) To assert the Charter issue in this Court, Forest Ethics and Ms. Sinclair had to first raise it before the Board
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[37] Forest Ethics and Ms. Sinclair could have raised the Charter issue before the Board but did not. In the circumstances of this case, their failure to raise the Charter issue before the Board prevents them from raising it for the first time on a judicial review in this Court.
[38] After receiving the Board’s decision under section 55.2 of the Act denying her participation in the larger proceeding, Ms. Sinclair could have brought a motion asking the Board to rescind or vary its decision based on the Charter or other considerations: National Energy 2014 FCA 245 (CanLII) Board Act, supra, subsection 21(1); National Energy Board Rules of Practice and Procedure,
1995, SOR/95-208, Rule 35. Board decisions under section 55.2 of the Act qualify as “decisions” that can be revisited under subsection 21(1) of the Act. By way of exception, subsection 21(3) of the Act lists certain decisions that cannot be revisited. Section 55.2 decisions are not listed in subsection 21(3).
[39] Similarly, both Forest Ethics and Ms. Sinclair could have moved against the Board’s decision that certain issues were irrelevant or the Board’s decision to use an Application to
Participate Form, relying on Charter or other grounds. But they did not.
[40] In any of these motions, Forest Ethics and Ms. Sinclair could have raised the Charter guarantee of freedom of expression. The Board can hear and decide questions of law, including
Charter issues: National Energy Board Act, supra, subsection 12(2); Nova Scotia (Workers’
Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003
SCC 54, [2003] 2 S.C.R. 504 at paragraph 48. Although the Board was an available forum to
Page: 13 hear and decide the Charter issues, Forest Ethics and Ms. Sinclair chose not to avail themselves of it.
[41] As a result, the Board has never had a chance to consider the constitutional issues the applicants now place before this Court.
[42] This matters. Had the constitutional issue been raised before the Board, the Board could 2014 FCA 245 (CanLII) have received evidence relevant to it, including any evidence of justification under section 1 of the Charter. The Board would also have had the benefit of cross-examinations and submissions on the matter, along with an opportunity to question all parties on the issues. Then, with those advantages, it would have reflected and weighed in on the matter and expressed its views in its reasons. In its reasons, it could have set out its factual appreciations, insights gleaned from specializing over many years in the myriad complex cases it has considered, and any relevant policy understandings. At that point, with a rich, fully-developed record in hand, a party could have brought the matter to this Court on judicial review.
[43] The approach of placing the constitutional issues before the Board at first instance respects the fundamental difference between an administrative decision-maker and a reviewing court: here, the Board and this Court. Parliament has assigned the responsibility of determining the merits of factual and legal issues – including the merits of constitutional issues – to the
Board, not this Court. Evidentiary records are built before the Board, not this Court. As a general rule, this Court is restricted to reviewing the Board’s decisions through the lens of the standard of review using the evidentiary record developed before the Board and passed to it. See generally
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Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22, 428 N.R. 297.
[44] Were it otherwise, if administrative decision-makers could be bypassed on issues such as this, they would never be able to weigh in. On a judicial review, administrative decision-makers do not have full participatory rights as parties or interveners. They cannot make submissions to the reviewing court with a view to bolstering or supplementing their reasons. They face real 2014 FCA 245 (CanLII) restrictions on the submissions they can make. See generally Canada (Attorney General) v.
Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3 at paragraphs 16-17. As a result, often their only opportunity to supply relevant information bearing upon the issue – such as factual appreciations, insights from specialization and policy understandings – is in their reasons.
[45] If administrative decision-makers could be bypassed on issues such as this, those appreciations, insights and understandings would never be placed before the reviewing court. In constitutional matters, this is most serious. Constitutional issues should only be decided on the basis of a full, rich factual record: Mackay v. Manitoba, [1989] 2 S.C.R. 357 at pages 361-363.
Within an important regulatory sector such as this, a record is neither full nor rich if the insights of the regulator are missing.
[46] The Supreme Court has strongly endorsed the need for constitutional issues to be placed first before an administrative decision-maker who can hear them: Okwuobi v. Lester B. Pearson
School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General),
2005 SCC 16, [2005] 1 S.C.R. 257 at paragraphs 38-40. Where, as here, an administrative
Page: 15 decision-maker can hear and decide constitutional issues, that jurisdiction should not be bypassed by raising the constitutional issues for the first time on judicial review. Parliament’s grant of jurisdiction to the Board to decide such issues must be respected.
[47] This rule can be relaxed in cases of urgency: Okwuobi, supra at paragraphs 51-53. And a direct challenge in Court to the constitutionality of legislation is possible as long as the challenge is not “circumventing the administrative process” or tantamount to a collateral attack on an 2014 FCA 245 (CanLII) administrator’s power to decide the issue (outside the circumstances where prohibition is permitted): Okwuobi, supra at paragraph 54.
[48] Counsel for the applicants resists the application of Okwuobi to the case at bar.
[49] First, counsel for the applicants noted that the administrative tribunal in Okwuobi enjoyed exclusive jurisdiction to decide matters under its governing statute. But that is the same here. The
Board has the exclusive power to hear all issues of fact and law, including constitutional issues, that arise during its proceedings: National Energy Board Act, supra, subsection 12(2), and
Martin, supra. For good measure, the Board’s decisions on such matters are “final and conclusive”: National Energy Board Act, supra, subsection 23(1).
[50] Next, counsel for the applicants submitted that the Board does not have the power to declare section 55.2 of no force or effect. That is true. But in Okwuobi the Supreme Court gave a full answer to that point, rejecting it (at paragraphs 45-46):
On the question of remedies, the appellants correctly point out that the [Tribunal] cannot issue a formal declaration of invalidity. This is not, in our opinion, a
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reason to bypass the exclusive jurisdiction of the Tribunal. As this Court stated in Martin, the constitutional remedies available to administrative tribunals are indeed limited and do not include general declarations of invalidity (para. 31). Nor is a determination by a tribunal that a particular provision is invalid pursuant to the Canadian Charter binding on future decision makers. As Gonthier J. noted, at para. 31: “Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases.”
That said, a claimant can nevertheless bring a case involving a challenge to the constitutionality of a provision before the [Tribunal]. If the [Tribunal] finds a breach of the Canadian Charter and concludes that the provision in question is not saved under s. 1 it may disregard the provision on constitutional grounds and
rule on the claim as if the impugned provision were not in force (Martin, at para. 2014 FCA 245 (CanLII) 33). Such a ruling would, however, be subject to judicial review on a correctness standard, meaning that the Superior Court could fully review any error in interpretation and application of the Canadian Charter. In addition, the remedy of a formal declaration of invalidity could be sought by the claimant at this stage of the proceedings.
[51] Finally, counsel for the applicants submitted that the more recent, somewhat more flexible holding of the Supreme Court in Alberta (Information and Privacy Commissioner) v.
Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654 governs this case, not
Okwuobi.
[52] In Alberta Teachers, supra, the Supreme Court offered guidance on when a reviewing court may consider new issues on judicial review, i.e., issues that were not raised before the administrative decision-maker. At paragraph 22, Justice Rothstein, writing for the majority of the
Court, stated that “[j]ust as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so.”
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[53] Relying upon Alberta Teachers, supra, counsel for the applicants invites us to exercise our discretion in favour of hearing the constitutional issues for the first time on judicial review in this Court.
[54] I doubt that Alberta Teachers, supra, applies to constitutional issues that were not raised before an administrative decision-maker that had the power to consider them. Alberta Teachers does not refer to Okwuobi at all, nor does it speak even once about constitutional issues. 2014 FCA 245 (CanLII) Okwuobi remains on the books, unaffected by Alberta Teachers.
[55] This makes sense. In cases such as MacKay, supra, the Supreme Court has repeatedly insisted that courts have the benefit of a full factual record in constitutional matters, including the benefit of the decision-maker’s factual appreciations, insights from specialization and policy understandings. As I have explained above, that sort of record can only be developed before the administrative decision-maker.
[56] However, even if Alberta Teachers applies to the case at bar, I would exercise my discretion against entertaining the constitutional issues for the first time on judicial review.
[57] Alberta Teachers instructs us that the general rule is that “this discretion will not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised” before the administrative decision-maker (at paragraph 23). In support of this, the
Supreme Court invoked many of the reasons set out above, including the administrative decision- maker’s role as fact-finder and merits-decider, its appreciation of policy considerations, and
Page: 18 possible prejudice to other parties (at paragraphs 23-26). In this case, the Board’s contribution to the constitutional issues at hand – involving as they do issues of the Board’s management of the complex proceedings before it and its appreciation of its statutory mandate and the policy considerations inherent in it – would have been significant.
[58] For the foregoing reasons, Forest Ethics and Ms. Sinclair are barred from invoking the
Charter for the first time on judicial review. 2014 FCA 245 (CanLII)
[59] In light of my finding concerning the standing of Forest Ethics, in the remainder of my reasons I shall refer exclusively to the applicant Ms. Sinclair.
(2) Are the decisions unreasonable?
[60] The parties agree that the standard of review of all three decisions is reasonableness.
Notwithstanding the parties’ agreement, this Court must apply the proper standard of review – our own analysis is necessary. See Monsanto Canada Inc. v. Ontario (Superintendent of
Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152 at paragraph 6.
[61] I shall consider the Board’s decisions separately. The parties proceeded on that basis and there is analytical clarity in that approach. However, that approach also smacks of artificiality.
The decisions are linked and dependent upon each other. As mentioned above, Ms. Sinclair wanted to raise with the Board larger substantive issues such as climate change. In its decision concerning the relevancy of certain issues, the Board ruled that it would not consider that larger issue. As rightly conceded by the respondents, this affected Ms. Sinclair’s case to participate,
Page: 19 though, as we shall see, the Board did invoke other reasons based on other considerations of relevance to deny her participation. Further, Ms. Sinclair submits that the Application to
Participate Form, shaped in part by the Board’s decision on relevancy, unduly constrained the
Board’s decision regarding participation rights and, by its length and complexity, frustrated her and drove other potential participants away, preventing some substantive matters from being aired and considered. In reality, this Court is faced with an inseparable triumvirate of decisions with intertwined procedural and substantive attributes. 2014 FCA 245 (CanLII)
[62] Given this, the reasonableness or unreasonableness of one decision can affect the reasonableness or unreasonableness of the others. It follows that in cases such as this, there is considerable merit in the Supreme Court’s recent approach of not artificially parsing a matter and segmenting it into separate decisions, but rather focusing on the outcome reached by the administrative decision-maker with due regard to any significant problems in its reasoning:
Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.
559 at paragraph 53; Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114 at paragraphs 27-38. This is especially so if, as we shall see, we review the substantive decisions and procedural decisions in this case in the same way. Nevertheless, at the risk of some duplication in the analysis, I shall analyze the decisions separately, as the parties have suggested.
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(a) The Board’s decision that certain issues were irrelevant
[63] The Board’s decision that certain issues were irrelevant to the larger proceeding is one of substance. Therefore, the traditional analysis for the review of substantive decisions set out in
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 applies.
[64] In reaching its decision that certain issues, such as climate change, were irrelevant, the 2014 FCA 245 (CanLII) Board had to interpret subsection 52(2) of the National Energy Board Act, supra, a provision that instructs the Board what it must consider in cases before it. Then it had to apply that interpretation to the facts before it. As set out in Dunsmuir, supra, and most recently in Alberta
Teachers, supra, and Agraira, supra, the standard of review in such matters is reasonableness.
We are to assess whether the outcome is acceptable and defensible on the facts and the law, bearing in mind that the ranges are flexible and can be broad or narrow in different circumstances: Dunsmuir, supra, paragraph 47; Catalyst Paper Corp. v. North Cowichan
(District), 2012 SCC 2, [2012] 1 S.C.R. 5. In other words, the Board is entitled to a margin of appreciation that can be wide or narrow, depending on the circumstances: Canada (Transport,
Infrastructure and Communities) v. Farwaha, 2014 FCA 56 at paragraphs 91-95.
[65] Ms. Sinclair suggested that another approach to reasonableness review should be adopted. She submitted that the Board’s failure to take into account larger matters such as climate change automatically rendered its decision-making invalid.
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[66] Ms. Sinclair’s submission smacks of the old nominate category of review known as
“failing to take into account a relevant consideration.” Long ago, if an administrative decision- maker failed to take into account a consideration viewed by the Court as relevant, the Court would automatically quash the decision. In reality, this was a form of correctness review – the
Court created its own yardstick of relevance and then applied it to the administrator’s decision to see whether it conforms with the Court’s view of the matter. 2014 FCA 245 (CanLII) [67] This Court has now rejected this approach – the one urged upon us by Ms. Sinclair – in favour of the modern approach exemplified in cases such as Dunsmuir and Alberta Teachers and described in paragraph 64, above:
At one time, the taking into account of irrelevant considerations and the failure to take into account relevant considerations were nominate grounds of review – if they happened, an abuse of discretion automatically was present. However, over time, calls arose for decision-makers to be given some leeway to determine whether or not a consideration is relevant: see, e.g., Baker, supra at paragraph 55; Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 24. Today, the evolution is complete: courts must defer to decision-makers’ interpretations of statutes they commonly use, including a decision-maker’s assessment of what is relevant or irrelevant under those statutes: Dunsmuir, supra at paragraph 54; Alberta Teachers’ Association, supra at paragraph 34. Accordingly, the current view is that these are not nominate categories of review, but rather matters falling for consideration under Dunsmuir reasonableness review: see Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at paragraphs 53-54.
(Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at paragraph 74.)
[68] Turning to reasonableness review under Dunsmuir, and by way of recap, the Board decided that, in the larger proceeding before it, it would not consider the environmental and
Page: 22 socio-economic effects associated with upstream activities, the development of the Alberta oil sands, and the downstream use of oil transported by the pipeline.
[69] In my view, this decision is reasonable in that it reaches an outcome within a range of acceptability and defensibility on the facts and the law or, in other words, the margin of appreciation this Court must afford to it. I offer the following reasons in support of this conclusion: 2014 FCA 245 (CanLII)
The Board’s main responsibilities under the National Energy Board Act, supra
include regulating the construction and operation of inter-provincial oil and gas
pipelines (see Part III of the Act).
Nothing in the Act expressly requires the Board to consider larger, general issues
such as climate change.
The Board submitted, and I accept, that in a section 58 application such as this,
the Board must consider issues similar to those required by subsection 52(2) of
the Act.
Subsection 52(2) of the Act empowers the Board to have regard to considerations
that “to it” appear to be “directly related” to the pipeline and “relevant.” The
words “to it,” the imprecise meaning of the words “directly,” “related” and
“relevant,” the privative clause in section 23 of the Act, and the highly factual and
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policy nature of relevancy determinations, taken together, widen the margin of
appreciation that this Court should afford the Board in its relevancy
determination: Farwaha, supra at paragraphs 91-95.
Further, in applying subsection 52(2) of the Act, the Board could reasonably take
the view that larger, more general issues such as climate change are more likely
“directly related” to the environmental effects of facilities and activities upstream 2014 FCA 245 (CanLII) and downstream from the pipeline, not the pipeline itself.
The Board does not regulate upstream and downstream facilities and activities.
These facilities and activities require approvals from other regulators. If those
facilities and activities are affecting climate change and in a manner that requires
action, it is for those regulators to act or, more broadly, for Parliament to act.
Subsection 52(2) of the Act contains a list of matters that Parliament considered
to be relevant: see paragraphs 52(2)(a) through 52(2)(d). Each of these is
relatively narrow in that it focuses on the pipeline, not upstream or downstream
facilities and activities. Paragraph 52(2)(e) refers to “any public interest.” It was
for the Board to interpret that broad phrase. It was open to the Board to consider
that the “public interest” somewhat takes its meaning from the preceding
paragraphs in subsection 52(2) and the Board’s overall mandate in Part III of the
Act. Thus, it was open to the Board to consider that the “public interest” mainly
relates to the pipeline project itself, not to upstream or downstream facilities and
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activities. (In this regard, pre-Dunsmuir authorities that engaged in correctness
review of the meaning of “public interest” or quashed Board decisions for failing
to take into account a factor the Court considered relevant are to be regarded with
caution: see, e.g., Nakina (Township) v. Canadian National Railway Co. (1986),
69 N.R. 124 (F.C.A.) and Sumas Energy 2, Inc. v. Canada (National Energy
Board), 2005 FCA 377, [2006] 1 F.C.R. 456.) 2014 FCA 245 (CanLII) Parliament recently added subsection 52(2) and section 55.2 to the Act in order to
empower the Board to regulate the scope of proceedings and parties before it
more strictly and rigorously: Jobs, Growth and Long-term Prosperity Act, S.C.
2012, c. 19, s. 83. The Board’s decision is consistent with this objective.
Consistency of a decision with statutory objectives is a badge or indicator of
reasonableness: Canada (Attorney General) v. Almon Equipment Limited, 2010
FCA 193, [2011] 4 F.C.R. 203 at paragraph 21; Montréal (City) v. Montreal Port
Authority, 2010 SCC 14, [2010] 1 S.C.R. 427 at paragraphs 42-47.
The Board’s task was a factually suffused one based on its appreciation of the
evidence before it. This tends to widen the margin of appreciation this Court
should afford the Board: Farwaha, supra. In my view, the Board’s decision was
within that margin of appreciation.
Page: 25
(b) The Board’s decision on its process, including the Application to Participate Form
[70] This decision is procedural in nature. On the current state of the authorities in this Court, the standard of review is correctness with some deference to the Board’s choice of procedure
(see Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 at paragraphs 34-42) though, as noted in my reasons in Maritime Broadcasting System Limited v. Canadian Media
Guild, 2014 FCA 59 at paragraphs 50-56, some authorities from this Court prescribe deference 2014 FCA 245 (CanLII) as the proper approach. Re:Sound urges us to be “respectful of the agency’s choices,” and exercise a “degree of deference” when assessing the Board’s procedural decision.
[71] In Maritime Broadcasting, supra at paragraph 61, I explained Re:Sound as follows:
I prefer to interpret Re:Sound in a manner faithful to Dunsmuir, the later cases of the Supreme Court and the settled cases of this Court, all of which bind us. These cases tell us that review conducted in a manner “respectful of the agency’s choices” or with a “degree of deference” to those choices is really a species of deferential review – i.e., the reasonableness standard, a standard the Supreme Court in Dunsmuir, supra described (at paragraphs 47-48) as the only “respectful” or “deferential” one.
[72] Here, in its process decision, the Board is entitled to a significant margin of appreciation in the circumstances of this case. Several factors support this:
The Board is master of its own procedure: Knight v. Indian Head School Division
No. 19, [1990] 1 S.C.R. 653 at page 685.
The Board has considerable experience and expertise in conducting its own
hearings and determining who should not participate, who should participate, and
Page: 26
how and to what extent. It also has considerable experience and expertise in
ensuring that its hearings deal with the issues mandated by the Act in a timely and
efficient way.
The Board’s procedural choices – in particular, the choice here to design a form
and require that it be completed – are entitled to deference: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 27. 2014 FCA 245 (CanLII)
The Board must follow the criteria set out in section 55.2 of the Act – whether “in
[its] opinion” a person is “directly affected” by the granting or refusing of the
application and whether the person has “relevant information or expertise.” But
these are broad terms that afford the Board a measure of latitude, and so in
obtaining information from interested parties concerning these criteria, it should
be also given a measure of latitude.
Finally, as mentioned above, the Board’s decisions are protected by a privative
clause.
[73] I add that the Application to Participate Form is based to some extent on the Board’s own assessment of what issues are relevant, a question on which, as I have stated above, the Court should afford the Board a margin of appreciation.
Page: 27
[74] Bearing in mind that the margin of appreciation that this Court must afford the Board, I cannot find that the Application to Participate Form is outside of that margin.
[75] Ms. Sinclair alleges that the Application to Participate Form is too complicated, takes too much time and frightens interested people from participating in the proceedings. I disagree. The form is no worse than other forms of application in other fora, such as motions to intervene in this
Court. The Board is entitled to take the position that, consistent with the tenor of section 55.2 of the 2014 FCA 245 (CanLII) National Energy Board Act, supra, it only wants parties before it who are willing to exert some effort.
[76] Board hearings are not an open-line radio show where anyone can dial in and participate.
Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the
Board’s task of regulating the construction and operation of oil and gas pipelines.
[77] Parliament has recently enacted section 55.2 to make Board hearings fair but more focused and efficient: Jobs, Growth and Long-term Prosperity Act, supra at section 83. It requires that persons who are not directly affected show that they have “relevant information or expertise.” This requires rigorous demonstration. The Application to Participate Form is commensurate with that requirement.
(c) The Board’s decision to deny Ms. Sinclair participation
[78] At the outset, we must ask whether the Board’s decision to deny Ms. Sinclair participation was substantive or procedural. As can be appreciated from the foregoing discussion,
Page: 28 the test for judicial review has historically varied according to whether the decision is substantive or procedural.
[79] In my view, the decision to deny Ms. Sinclair participation is a mix of substance and procedure.
[80] Part of the decision concerns substance. At its root, it concerns the relevance and 2014 FCA 245 (CanLII) materiality of what Ms. Sinclair had to offer to the Board. In the Board’s view, Ms. Sinclair had nothing of relevance, materiality or both to contribute to the decision. Viewed in this way, we must review the decision using the test set out in Dunsmuir, supra: does the substantive outcome reached by the Board fall within a range of outcomes that is acceptable and defensible on the facts and the law?
[81] On the other hand, the Board’s decision can be seen as one of procedure. Admitting a party to a proceeding and deciding what level of participation the party should have has often been considered to be procedural in nature: see, e.g., Bibeault v. McCaffrey, [1984] 1 S.C.R. 176.
If we view the Board’s decision as procedural, then, as mentioned above, the standard of review is correctness with some deference to the Board’s choice of procedure: Re:Sound, supra at paragraphs 36-42. Under the Re:Sound approach, we are to be “respectful of the agency’s choices” and exercise a “degree of deference.” See also the articulation of deference in Maritime
Broadcasting, supra at paragraph 61.
Page: 29
[82] Regardless of how we characterize the Board’s decision, the Board deserves to be allowed a significant margin of appreciation: Dunsmuir, supra at paragraphs 53-54; Farwaha, supra at paragraphs 88-92. The Board engaged in a factual assessment, drawing upon its experience in conducting hearings of this sort and its appreciation of the type of parties that do and do not make useful contributions to its decisions. Matters such as these are within the ken of the Board, not this Court. 2014 FCA 245 (CanLII) [83] Bearing in mind the margin of appreciation that we must afford to the Board, the Board’s decision to deny Ms. Sinclair participation in the larger proceeding was reasonable. I offer the following reasons:
The Board interpreted section 55.2, a task incumbent upon it as part of its
decision. The Board saw the section as being concerned with “fairness and
efficiency” by “focusing consultation on individuals directly affected by an
application and persons with relevant information or expertise.” The Board’s
interpretation is acceptable and defensible, in that it closely aligns with the text
and purpose of the section.
Further, the Board’s reference to “fairness” signals a sensitivity to the interests,
including free expression interests, of each applicant before it. It was well aware
that those applying to participate wanted to express themselves. To the extent that
it was incumbent on the Board to consider the Charter value of free expression,
even though that was never put to it, I consider that in substance it did do so by
Page: 30
considering “fairness” and assessing whether the message the applicants before it
intended to communicate in the larger proceeding were outweighed by the need
for the submissions to be relevant and useful in accordance with section 55.2: see
Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at paragraph 24.
The result it reached was reasonable.
The Board explained the purposes behind the Application to Participate Form – a 2014 FCA 245 (CanLII) means to get particular information so it could consider each application “on a
case-by-case basis” alongside the “the specific facts and circumstances” of the
project application before it. This was an acceptable and defensible approach to
the problem before it.
The Board explained that it denied certain persons participation rights because in
its view they did not satisfy the test under section 55.2. In other words, it was
mindful of the need to apply the statutory standard to each application for
participation before it, a matter incumbent upon it.
The Board went further and discussed Ms. Sinclair’s application specifically. It
accurately recounted her submission – that her interest lay in her religious beliefs
and her Canadian citizenship in general. The Board held that this was “only a
general public interest in the proposed Project.” It added that she lives in North
Bay, Ontario, a community “not in the vicinity of the Project.” On the facts and
the law, bearing in mind the Board’s experience in determining what is and is not
Page: 31
useful in proceedings before it and its interest in efficient, timely proceedings, this
was an acceptable and defensible outcome.
[84] For the foregoing reasons, I conclude that the Board’s three decisions are reasonable.
C. Proposed disposition 2014 FCA 245 (CanLII) [85] Therefore, I would dismiss the application for judicial review. With the exception of the
Board, the applicants and the respondents all sought costs in the event of success. Therefore, following the result of the application, I would grant costs to the respondents, the Attorney
General of Canada and Enbridge Pipelines Inc.
"David Stratas" J.A.
“I agree Johanne Trudel J.A.”
“I agree D.G. Near J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-273-13
AN APPLICATION FOR JUDICIAL REVIEW OF THREE INTERLOCUTORY DECISIONS OF THE NATIONAL ENERGY BOARD.
STYLE OF CAUSE: FOREST ETHICS ADVOCACY ASSOCIATION, AND DONNA
SINCLAIR v. THE NATIONAL 2014 FCA 245 (CanLII) ENERGY BOARD, THE ATTORNEY GENERAL OF CANADA and ENBRIDGE PIPELINES INC.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 27, 2014
REASONS FOR JUDGMENT BY: STRATAS J.A.
CONCURRED IN BY: TRUDEL J.A. NEAR J.A.
DATED: OCTOBER 31, 2014
APPEARANCES:
Clayton Ruby FOR THE APPLICANTS Nader Hasan
Michael H. Morris FOR THE RESPONDENT, Jacqueline Wilson ATTORNEY GENERAL OF CANADA
Andrew Hudson FOR THE RESPONDENT, NATIONAL ENERGY BOARD
Page: 2
Joshua Jantzi FOR THE RESPONDENT, Doug Crowther ENBRIDGE PIPELINES INC. Jason MacLean FOR THE INTERVENER
SOLICITORS OF RECORD:
Ruby Shiller Chan Hasan FOR THE APPLICANTS Toronto, Ontario
William F. Pentney FOR THE RESPONDENT, Deputy Attorney General of Canada ATTORNEY GENERAL OF
CANADA 2014 FCA 245 (CanLII)
National Energy Board FOR THE RESPONDENT, Calgary, Alberta NATIONAL ENERGY BOARD
Dentons Canada LLP FOR THE RESPONDENT, Calgary, Alberta ENBRIDGE PIPELINES INC.
Lakehead University Faculty of Law FOR THE INTERVENER Thunder Bay, Ontario
Federal Court Cour fédérale
Date: 20110415
Docket: T-436-05
Citation: 2011 FC 467
Ottawa, Ontario, April 15, 2011
PRESENT: The Honourable Mr. Justice Phelan 2011 FC 467 (CanLII)
BETWEEN:
VARCO CANADA LIMITED VARCO, L.P. WILDCAT SERVICES, L.P. and WILDCAT SERVICES CANADA, ULC
Plaintiffs (Defendants by Counterclaim)
and
PASON SYSTEMS CORP. and PASON SYSTEMS INC.
Defendants (Plaintiffs by Counterclaim)
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
Page: 2
[1] The trial in this matter concluded on February 11, 2011. The matter is under reserve and no
reasons or judgment have been issued. The Defendants now seek to reopen the trial.
[2] The subject of a motion to reopen the trial to admit new evidence first arose in a letter from
Plaintiffs’ counsel to the Court which commenced:
I am writing pursuant to R. 4.01(5) of the Rules of Professional Conduct which requires counsel to correct evidence which, unknowingly, was led before you and which we have since
discovered to be inaccurate. 2011 FC 467 (CanLII)
[3] The letter went on to disclose that the file of a Texas patent agent, Mr. Bates, (Bates File)
had been discovered and that as a result, a key witness for the Plaintiffs, Robert Bowden Jr., the
patent inventor, now had a different recollection of events than his testimony before this Court
disclosed. The letter went even further to describe what the evidence would be if Bowden were to testify and his explanation for his faulty memory.
[4] The Court commends Plaintiffs’ counsel for acting as they did and for doing so promptly and forthrightly. It was disappointing that the Defendants, who also had the Bates File, did not immediately inform the Court. However, the Defendants did bring this motion to reopen. Despite the Plaintiffs’ acknowledgement that Bowden’s evidence on certain key events and at critical times was inaccurate, the Plaintiffs have resisted this motion.
It would be a curious thing if the Rules of Professional Conduct were to impose an obligation on counsel to advise the Court of inaccurate evidence led by counsel and the Court was not expected to take some actions to ensure the accuracy of the trial record. A letter from counsel as
Page: 3
to what that corrected evidence might be is not sufficient in this case where cross-examination can
be anticipated and the Court must assess credibility of the witness on this new recollection.
II. BACKGROUND
[5] Bates is now an elderly and potentially ill man. His role in certain events relevant to this trial is important. He was the first patent agent that the inventor Bowden went to and it is established that
he gave advice on the prior art which might impact Bowden’s chances of securing a patent. This 2011 FC 467 (CanLII)
letter, the “Bates Letter”, has been put in evidence and there has been much argument on its
meaning and significance.
[6] The Defendants, as part of this attack on the validity of the patent, have alleged that there
was inequitable conduct by the Plaintiffs’ predecessors in claim which invalidates the patent.
[7] In general terms this novel theory is that the Canadian Patent Office was misled on the issue
of prior art because the US PTO was given deliberately false and misleading evidence from
Bowden. The alleged “fraud on the US PTO” (a US concept) had the knock-on effect of misleading
the Canadian Patent Office.
[8] The gist of the allegation is that Bowden, having received the problematic Bates Letter, went
to another patent agent-lawyer, failed to disclose the prior art cited in the Bates Letter, and had the
new patent agent file the patent application in the US without disclosing the prior art.
Page: 4
[9] Bowden’s evidence is that he had minor telephone contact with Bates between September
1991 and September 1992. He testified that he did not meet with Bates nor provide him with any
documents.
[10] As the result of different litigation in Texas not directly involving these Defendants, a Mr.
Kling, counsel for Autodrill Inc., – a defendant in that other litigation brought by the US arm of the
Varco plaintiff – tracked down the existence of the Bates File and obtained it. 2011 FC 467 (CanLII)
[11] The Bates File would suggest a different version of events than that currently before the
Court on such matters as the retention of Bates’ services, the nature and extent of the contact between Bowden and Bates, and the information disclosed including drawings, notes and other items. The Bates File also touches upon the retention of the second patent agent Mr. Comuzzi and the first use and disclosure of the invention.
[12] The Plaintiffs resist this motion primarily on the matter of the Defendants’ lack of due diligence in securing the Bates File, the lack of relevance of the File because it relates to an arguably
suspect theory of inequitable conduct and its lack of relevance because it does not support the
Defendants’ theory of the case even as to issues of public disclosure. In this last respect the
Plaintiffs argue that the documents are consistent with the Plaintiffs’ theory of public disclosure – that any such disclosure was within the one-year grace period to file a patent application.
A. Legal Principles
Page: 5
[13] There is a paucity of law on the issue of reopening a trial after argument but before
judgment is entered or reasons given.
[14] Despite this lacuna, the law on reopening a trial after reasons have been issued gives guidance to the considerations which the Court must give in the specifics of this case.
[15] The first point and an overarching aspect is that reopening is a matter of broad discretion but 2011 FC 467 (CanLII) one which should be exercised sparingly and cautiously. Finality of a trial is a critical concept in our justice system – no one appreciates that concept more than a trial judge who is faced with the generally unpleasant task of reopening a case on which he or she has commenced writing.
[16] While the discretion is broad, there are some factors which should be considered. The decision in 671122 Ontario Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 SCR 983 has set out the questions a court should consider:
1. Would the evidence, if presented at trial, have changed the result?
2. Could the evidence have been obtained before trial by the exercise of reasonable diligence?
[17] The Sagaz decision is not strictly applicable here because it dealt with a motion to reopen after judgment had been rendered. On the first test the situation is quite different where the Court has not yet reached its final conclusion. In the current situation it is more appropriate to ask – could the evidence, if it had been presented, have had any influence on the result? This engages an inquiry as to materiality/relevance.
Page: 6
[18] The second branch of the Sagaz test can be more easily imported into the situation of new evidence before decision where it is a factor for consideration but not necessarily determinative of the issue.
[19] The judicial policy captured by the two-prong test is well described in Risorto v State Farm
Mutual Automobile Insurance Co., (2009), 70 CPC (6th) 390 (Ont. Div. Ct.), in paragraphs 34-36:
34 The principles applied by the Supreme Court of Canada in
Sagaz, supra, are not new. They have been applied by Canadian 2011 FC 467 (CanLII) courts for decades: see Becker Milk Co. Ltd. v. Consumers' Gas Co. (1974), 2 O.R. (2d) 554 (C.A.); and Scott v. Cook, [1970] 2 O.R. 769 (H.C.J.). They have been applied in the case of both trials and motions: see DeGroote v. Canadian Imperial Bank of Commerce, [1998] O.J. No. 1696 (S.C.J.); aff'd (1999), 121 O.A.C. 327 (C.A.); Jaskiewicz v. Humber River Regional Hospital (2000), 4 C.C.L.T. (3d) 85 (Ont. S.C.J.); 1307347 Ontario Inc. v. 1243058 Ontario Inc. (2001), 4 C.P.C. (5th) 153 (Ont. S.C.J.); and Wong v. Adler (2004), 10 C.P.C. (6th) 58 (Ont. S.C.J.). In all such cases, the test for reopening the matter and permitting the calling of new evidence is the same. The moving party must satisfy the Court that the proposed evidence would probably change the result, and that it could not have been discovered by the exercise of due diligence.
35 The policy reasons for the adoption of the two-pronged test are well-known, and have been discussed in a number of the cases to which I have referred. An orderly system of litigation requires that each party put his or her best foot forward. It contemplates that judgment will be rendered after each party has done so. Litigation by instalments is not to be encouraged. There is a strong interest in finality, which should only be departed from in exceptional circumstances. Parties make strategic decisions in the course of litigation, and except in narrow circumstances they must be held to those decisions. At para. 14 of her judgment in DeGroote, supra, Lax J. quoted with approval the following statement by Wilkins J. in Strategic Resources International Inc. v. Cimetrix Solutions Inc. (1997), 34 O.R. (3d) 416, at p. 421:
After the trial is complete and judgment is rendered, it is always a simple matter, utilizing hindsight, to go about reconstructing a better method of presenting the
Page: 7
case when one finds oneself in the sorry position of being a loser.
36 In the same paragraph, Lax J. noted the observation of the Court of Appeal in Becker Milk, supra, at p. 556, that "An unsuccessful litigant, save in very special circumstances, should not be allowed to come forward with new evidence available prior to judgment when he was content to have the trial judge bring forward his judgment based on the record produced at a trial in which that litigant actively participated."
[20] Added to the two-part test is a consideration of whether these are exceptional circumstances 2011 FC 467 (CanLII) that would justify setting aside the “due diligence” test or at least reducing its overall importance in the exercise of discretion. The danger that a court would be misled is an aspect of the “exceptional” circumstances consideration.
25 It appears that the appeal of the decision of Lax J. did not include an appeal from this decision, but rather only her decision to grant summary judgment, but nevertheless the Court of Appeal commented on her decision to dismiss the motion to permit this new affidavit to be filed. Without express reference to the test as stated in Scott v. Cook, the Court implicitly accepted this two part test as the appropriate test and went on to state that the issue in that case was whether there were exceptional circumstances that warranted setting aside the due diligence requirement, (at paras. 3- 4). The Court found no basis to interfere with Lax J.'s decision in assuming that the solicitor was negligent but that even so, the circumstances were not so exceptional as to warrant the exercise of discretion in favour of the appellants.
26 Having considered these cases then, I come to the same conclusion that Justices Wilkins and Lax did. I will consider the two part test in Scott v. Cook and consider whether or not there are exceptional circumstances in this case that would warrant setting aside the due diligence requirement. This could include a finding that there was a real prospect that the court was misled.
Lo v Ho (2010), 86 CPC (6th) 370 (Ont. SCJ)
Page: 8
[21] In this Court, Justice Snider had to consider a motion to reopen after the evidence was closed but before argument. Her decision has been inaccurately described as setting a test for reopening based upon whether reopening “would cause more harm than good” (Sanofi-Aventis
Canada Inc. v Apotex Inc., 2009 FC 294 at para. 8). That quote is no more than judicial shorthand for acknowledgement of the broad discretion to be exercised sparingly.
A fairer analysis of the reasons shows that in that situation the Court addressed five factors: relevance, necessity, reliability, due diligence and prejudice. 2011 FC 467 (CanLII)
[22] In my view, when all of the various factors, tests and considerations are taken together, the importance of the integrity of the trial process – the search for the truth through evidence – is an overarching consideration. To some extent that consideration is addressed in the issue of whether a court would be misled.
B. Application of Legal Principles
(1) Potential to Change Result/Influence the Result
[23] Since there is no result to change, the relevant question is whether the new evidence could
influence the result – is the evidence relevant?
[24] The Bates File contains documents and notes which touch upon the matter of public
disclosure. Each side suggests that the notes establish opposite conclusions – the Plaintiffs contend
that the notes are consistent with Bowden’s evidence; the Defendants say that the notes show that
public disclosure occurred outside the one-year grace period. The Bates File clearly passes this
relevancy threshold.
Page: 9
[25] The Bates File is also relevant, by the Plaintiffs’ own admission, because it shows Bowden’s evidence to be inaccurate – a matter which goes to credibility.
[26] The Bates File is not just marginal to the case. The materials go directly to critical matters at issue including the alleged inequitable conduct claim which the Defendants have the right to try to make out. The File is necessary for completeness of the trial testimony. 2011 FC 467 (CanLII)
[27] No one has suggested that the Bates File is unreliable.
[28] The receipt of this evidence, properly established, may influence the final decision and most certainly would be part of the Court’s reasons. If nothing else, the evidence and Bowden’s explanation (the Plaintiffs indicating that if there is a reopening, Bowden will testify) would correct the evidence in this action.
(2) Due Diligence
[29] On this issue the Defendants have some significant problems. Bates’ role in the issues in the action has been known for years. It seems that he has been residing at the same place in Texas throughout this litigation and before, yet no attempt was made to search for him. It is the
Defendants’ burden in this instance because it is their allegations of invalidity which are at stake.
Page: 10
[30] The Bates File surfaced through the diligence of Mr. Kling. The Defendants had merely asked Kling to inform them if he found anything useful in that other litigation. The Defendants cannot ride Kling’s coat-tails in establishing due diligence.
[31] However, the Defendants’ deficiency is not without contribution by the Plaintiffs. In discoveries and until 2009 the Plaintiffs had said that they thought Bates was dead. In 2009 it became known that he was alive; however, Bowden’s evidence was that he had minimal contact 2011 FC 467 (CanLII) with Bates and had left him no documents. The suggestion was clear that anything Bates had was marginal.
[32] While the Defendants were misled by the Plaintiffs, the Defendants have vigorously contested Bowden’s overall credibility and truthfulness throughout this action; as such, it was a highly risky proposition for the Defendants to rely on Bowden and to place their fate on this issue in the hands of another lawyer.
[33] The Plaintiffs share, in healthy measure, responsibility for the delay in the disclosure of the
Bates File. The Defendants’ actions or inactions must be measured against the backdrop of
Bowden’s minimalization of his interaction with Bates and the corresponding likelihood that there was nothing of significance in any files he kept.
[34] There is more than enough fault to be shared between all the parties for the lack of diligence here. However, there is precedent as cited above for the principle that any lack of due diligence must be tempered by the crucial factor that a court should not be misled as to the true facts.
Page: 11
III. CONCLUSION
[35] In my view, the primary concern must be for the integrity of the trial process. No significant
prejudice to reopening has been identified.
[36] The Court is now faced with knowledge that sworn evidence before it is inaccurate and that
it is possible to have more accurate information produced. The Court cannot turn a blind eye to the 2011 FC 467 (CanLII) admission that Bowden’s evidence, in some material aspects, was inaccurate. A court cannot then go on to make findings of fact on this inaccurate evidence.
[37] The Court is also faced with the knowledge that there is material evidence which goes to the
Defendants’ claim of inequitable conduct. One can ask rhetorically how the Court could ignore all this evidence particularly where the Court has not yet issued reasons or entered judgment.
[38] Therefore, this motion will be granted. Each of the parties shall have 21 days to file its proposals as to how and where this new evidence and any other necessary related evidence will be dealt with. A case conference thereafter is highly likely.
Given the contribution of both parties to the need for this motion, there will be no order for costs; each is to bear their own costs.
Page: 12
ORDER
THIS COURT ORDERS that this motion to reopen the trial is granted without costs. The parties are to submit within 21 days their proposals for the method of dealing with the new evidence.
2011 FC 467 (CanLII)
“Michael L. Phelan” Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-436-05
STYLE OF CAUSE: VARCO CANADA LIMITED VARCO, L.P. WILDCAT SERVICES, L.P. and WILDCAT SERVICES CANADA, ULC
and 2011 FC 467 (CanLII)
PASON SYSTEMS CORP. and PASON SYSTEMS INC.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 5, 2011
REASONS FOR ORDER AND ORDER: Phelan J.
DATED: April 15, 2011
APPEARANCES:
Ms. Sheila Block FOR THE PLAINTIFFS Mr. Peter Wilcox (DEFENDANTS BY COUNTERCLAIM) Mr. W. Grant Worden Mr. Justin Necpal
Mr. Kelly Gill FOR THE DEFENDANTS Ms. Selena Kim (PLAINTIFFS BY COUNTERCLAIM) Mr. James Blonde
Page: 2
SOLICITORS OF RECORD:
TORYS LLP FOR THE PLAINTIFFS Barristers & Solicitors (DEFENDANTS BY COUNTERCLAIM) Toronto, Ontario
GOWLINGS LLP FOR THE DEFENDANTS Barristers & Solicitors (PLAINTIFFS BY COUNTERCLAIM) Toronto, Ontario
2011 FC 467 (CanLII)