Recent Developments in Administrative Law - CAMPUT · Recent Developments in Administrative Law 11...

Recent Developments in Administrative Law

11th Annual Canadian Energy Law Forum Wedgewood Hotel, Vancouver

May 10-11, 2017

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Index

I. Burnaby v. National Energy Board – The Saga Continues II. Appeals on Law and Jurisdiction III. Issues dealt with in 5 ERQ 15

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I. Burnaby v. National Energy Board – The Saga Continues

Abbreviated Chronology • December 2013 – TM applies to NEB for twinning of existing pipeline. Involves

new locations in Burnaby including Burnaby Mountain Conservation Area • NEB requires TM to conduct field studies the very carrying out of which will

infringe Burnaby by-laws • Burnaby invokes by-laws to prevent TM carrying out work • TM applies to NEB for order confirming right to carry out work without

permission of Burnaby • August 19, 2014 – NEB issues ruling that NEB Act authorized entry onto land and

carrying out of work without Burnaby’s consent. No appeal to FCA by Burnaby

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I. Burnaby v. National Energy Board – The Saga Continues (cont.)

Abbreviated Chronology (cont.) • September 2, 2014 – TM starts work; Burnaby serves TM with notice of by-law violations • September 3, 2014 – TM applies to NEB for order requiring Burnaby to provide access • September 8, 2014 – Burnaby applies to BCSC for interim and permanent injunctions

restraining TM and declarations that NEB has no juris to override Burnaby’s by-laws or to issue orders forbidding enforcement of those by-laws against TM

• September 11, 2014 –BCSC hears application for interlocutory injunction preventing TM from violating by-laws

• September 17, 2014 - Brown J rejects application (2014 BCSC 1820) – matter before NEB, Burnaby could appeal any rulings to FCA, and seek injunction in FCA

• September 25, 2014 – NEB directs TM to state constitutional question with respect to issues surrounding its authority over Burnaby’s by-laws and ordering access to Burnaby land

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Abbreviated Chronology (cont.) • October 23, 2014 – NEB affirms jurisdiction over constitutional questions, affirms

inapplicability of Burnaby’s by-laws by reference to paramountcy and interjurisdictional immunity, as well as authority to issue an order against Burnaby, and makes order sought

• November 27, 2014 – Neilson JA (2014 BCCA 465) denies leave to appeal dismissal of application for interlocutory injunction on basis of collateral attack doctrine and abuse of process – Burnaby is in FCA seeking leave.

• December 12, 2014 - Burnaby’s application for leave to appeal denied by FCA without reasons

• February 13, 2015 – Appeal from Neilson JA dismissed (2015 BCCA 78) for mootness (work completed), but Burnaby free to pursue issue of NEB authority in its declaration proceedings

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Abbreviated Chronology • December 1, 2015 – Macintosh J dismisses (2015 BCSC 2140) Burnaby’s

application for declarations. Primary basis was abuse of process despite BCCA’s statement that still open to Burnaby to proceed with applications for declarations.

• BCCA decision was not determinative as to whether application could still be denied on discretionary grounds.

• In alternative, Macintosh J answered questions on which declarations sought in favour of TM and NEB

• Burnaby appealed but eventually confined appeal to issue of whether NEB had jurisdiction to issue orders against Burnaby with respect to enforcement of by-laws

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Burnaby (City) v Trans Mountain Pipeline ULC, 2017 BCCA 132 • A new argument by Burnaby! • Prompted by Windsor (City) v Canadian Transit Co., 2016 SCC 54, [2106] 2

SCR 617 – FC did not have jurisdiction to entertain application for declaration that City was acting unconstitutionally when issued repair orders against Company on basis of violation of municipal by-laws

• Despite fact that Company existed by virtue of special federal statute and was incorporated for sole purpose of operating a federal undertaking, there was no statutory grant of authority to the FC; no such action was created or recognized by federal law (common or statutory)

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• Federal Courts Act, s. 23(c) was not adequate to cloth FC with jurisdiction

• FC’s concurrent jurisdiction in matters between subject and subject was triggered only where a “claim for relief is made under an Act of Parliament or otherwise”. S.23 was not an independent source of jurisdiction

• Nothing in incorporating Act or elsewhere provided for FC jurisdiction to grant such a remedy. Seeking relief on basis of constitutional law is not claiming relief “under an Act of Parliament or otherwise”

• SCC split 5-4 with minority in effect rejecting majority’s specificity of relief requirement

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• In BCCA, it was argued that if FC did not have jurisdiction to issue declaration that City of Windsor could not constitutionally enforce by-laws against Company, NEB could not issue order against Burnaby respecting enforcement of its by-laws and, underlying that, could not consider whether those by-laws were constitutionally inapplicable to TM and interprovincial works and undertakings generally

• Unanimous BCCA distinguished Canadian Transit Co (para. 27). S. 73 of NEB Act conferred authority on applicants to enter onto land for purposes related to intended route of pipeline. In issuing Ruling that TM could rely on this provision and later enforcement orders, NEB was exercising remedial authority conferred under a federal law; as was FCA in responding to appeal from ruling brought under NEB Act. (Argument becomes more compelling when linked to s. 13 and powers of NEB to issue mandatory orders!)

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• Burnaby argued more generally (at para. 28) that NEB did not have authority “to make determinations in respect of the application and operation of provincial or municipal laws on an application to stop the enforcement of those laws.” This was preserve of provincial superior courts.

• Power conferred by s. 12 of NEB Act, to consider all questions of law including constitutional questions restricted to NEB’s own enabling legislation

• Also rejected by unanimous BCCA

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• Ability of tribunals to consider statutes other than constitutive legislation in effect established by Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 SCR 585. Tribunals with authority to consider questions of law (including constitutional questions) must take into account all applicable legal rules, both provincial and federal, as well as the supreme law of the land

• In determining whether TM could proceed with work despite conflict with Burnaby’s by-laws, NEB had perforce to consider constitutional doctrines of paramountcy and interjurisdictional immunity

• While no authority to make general declarations of invalidity in relation to provincial or municipal statutes, could declare that by-law did not apply

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Further Chronology • Burnaby participates in NEB hearings on TM Application, which resulted in NEB approval

subject to numerous conditions, and in subsequent GIC approval process A 77045-1 NEB – Report – Trans Mountain – Expansion Project – OH-001-2014 (May 19, 2016) P.C. 2016-1069 (November 29, 2016)

• Involved in various procedural skirmishes including secrecy of TM’s emergency response plans

• Burnaby applies for judicial review of GIC approval of application on various grounds including validity of OIC, assessment of impacts and alternatives, and procedural fairness

• February 22, 2017 – FCA grants leave to seek judicial review of GIC approval • March 9, 2017 – FCA consolidates all 16 applications for judicial review on which leave

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Comments and Questions Raised • Karakatsanis J in City of Windsor (at paras. 70-71) in passing calls into question

whether even FCA has authority to issue formal declarations of constitutional invalidity of legislation. Inapplicability (as between the parties) is one thing; generally binding declarations of invalidity may well be another. (Bizarre!)

• Nigel Bankes is very critical of FCA for failing to grant leave to appeal NEB ruling on capacity to deal with constitutional questions and the substance of questions stated. Important issues are in effect left undetermined by a superior court once BCSC and BCCA refuse to deal with these issues by reason of abuse of process (save, of course, for Macintosh dicta). Should the BC courts have taken case to prevent this void?

“BC Court Confirms That a Municipality Has No Authority With Respect to the Routing of an Interprovincial Pipeline”, Ablawg.ca, December 17, 2015

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Comments and Questions Raised (cont.) • Existence of concurrent jurisdiction, does not mean that it has to be exercised. On

occasion, deference to other court or tribunal appropriate • Burnaby pursued FC route for challenging NEB constitutional rulings. Should it

have had second crack when FCA refused leave? My answer: Only in exceptional circumstances and this was not one. FCA by denying leave in effect endorses NEB, and BC Courts should not second-guess. (Should original BCCA have left open limited constitutional questions door?)

• In City of Windsor, minority indicated reasons why on reference back, FC should not actually exercise the jurisdiction that it had – reasons which related to parallel tribunal and court proceedings in Ontario. Abella J would have gone further and issued stay: while the FC had jurisdiction, it should not exercise it

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Comments and Questions Raised (cont.) • On merits of constitutional challenges, Macintosh J’s dicta in effect adopts NEB’s

ruling on both paramountcy and interjurisdictional immunity. (No pith and substance challenge here.) While by-laws not invalid, operation against TM acting on direction of NEB would “impede or block the work, integral as it is to positioning the pipeline”. Paramountcy dictates that federal legislation and powers of NEB prevail. Under interjurisdictional immunity doctrine, would impair core or vital aspect of an exclusively federal domain

• Nonetheless, does not go as far as removing all provincial competence in matters affecting pipelines and other kinds of interprovincial works and undertakings

• Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 exemplifies

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Comments and Questions Raised (cont.) • Arises in context of application for judicial review of order of Environmental

Assessment Office in effect delegating its powers with respect to environmental impact assessment to NEB in relation to Northern Gateway Pipelines application

• Koenigsberg J set order aside and in effect compelled EAO to follow BC EIA processes

• NGP argued that legislation itself is invalid to extent that it affects interprovincial pipelines and federal authority exercised through NEB by potentially subjecting them to provincial EIA

• Absent actual decision and, in particular, specific conditions, not appropriate to hypothesize whether under interjurisdictional immunity or paramountcy

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Comments and Questions Raised (cont.) • Only question is constitutional validity of s. 17 of EAA authorizing Minister to

subject project to EIA • Having regard to purpose and effect of s. 17, it is not in “pith and substance”

legislation which trenches on Parliament’s constitutional domain albeit that it might affect that domain indirectly or that possible exercises of powers granted by section might be unconstitutional (e.g. outright refusal of permit for project)

• Distinguishing Macintosh J’s holding in Burnaby, s. 17’s impact on federal powers does not “render it inapplicable or inoperable” for purposes of interjurisdictional immunity and paramountcy. Again, not enough that could disallow project. Does not interfere with core functioning of federal undertaking. No clear conflict. Mere presence of conditions does not amount to a prohibition

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Comments and Questions Raised (cont.) • Other recent decisions on pith and substance, interjurisdictional immunity and

paramountcy having energy regulation relevance • Canada Post Corp. v Hamilton (City), 2016 ONCA 767 (by-law giving City jurisdiction over

location of community mailboxes) • Ultra vires on basis of paramountcy, not pith and substance or interjurisdictional

immunity, with Court adopting a very constrained version of latter doctrine – CPC had not demonstrated that trenching on federal jurisdiction sufficiently serious to warrant application (extension) to by-law)

• Rogers Communications v Châteauguay (City), 2016 SCC 23, [2016] 1 SCR 467 (municipal resolution creating reserve on which construction on property federally designated for installation of antennae system prohibited for two renewable periods of two years)

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Comments and Questions Raised (cont.) • Supreme Court ruled that resolution ultra vires on pith and substance (purpose

and effect) as well as interjurisdictional immunity (while should be applied with caution and generally only where precedent, was SCC precedent with respect to siting of telecommunications infrastructure (Radio Communication Reference, [1932] AC 304) as well as serious and significant impairment of federal power over telecommunications)

See commentary by Nigel Bankes noting relevance of this decision to interprovincial pipelines: “From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders”, Ablawg.ca, June 24, 2016

• Are courts generally less sympathetic to jurisdictional claims of municipalities than governments and regulatory agencies acting under provincial legislation?

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II. Appeals on Law and Jurisdiction

• Access to Courts from Energy Regulators varies across Canada as between judicial review and appeal and as to level of Court, grounds, and whether leave required

• Regular judicial review – New Brunswick (though findings of fact within jurisdiction conclusive) (direct to CA), Quebec (though restricted to questions of jurisdiction), and Governor in Council (interprovincial pipelines) (but on leave from FCA)

Energy and Utilities Board Act, SNB, c. E-0.18; An Act Respecting the Régie de l’Énergie, CQLR, c R-6.01; Jobs, Growth and Long-term Prosperity Act, SC 2012, c. 19, s. 55

• Statutory appeal without leave – Nova Scotia, PEI, and Ontario (jurisdiction and law; with facts expressly made conclusive in Nova Scotia); Manitoba (jurisdiction, law, and express findings of fact) (Manitoba, PEI, and Nova Scotia – Court of Appeal; Ontario – Divisional Court)

Utility and Review Board Act, SNS 1992, c. 11, ss. 26, 30(1); Island Regulatory and Appeals Commission Act, RSPEI, 1998, c. I-11, Ontario Energy Board Act, 1998, SO 1998, c. 15, Sched. B., s. 33; Public Utilities Board Act, CCSM, c. P280, s. 58(1) and (2)

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II. Appeals on Law and Jurisdiction (cont.)

• Statutory appeal with leave – Alberta Utilities Commission, Alberta Energy Regulator, National Energy Board, and Newfoundland (all restricted to law and jurisdiction and all to CA for both leave and on merits); British Columbia (except that unrestricted

Alberta Utilities Commission Act, SA 2007, c. A-37.2, s. 29; Responsible Energy Development Act, SA 2012, c. R- 17.3, s. 45; National Energy Board Act, RSC 1987, c. N-7, s. 22(1); Public Utilities Act, RSNL 1990, c P-47, s. 99

• FCA seldom, if ever provides reasons for granting or denying leave to appeal from decisions of National Energy Board. In contrast, significant body of reported case law on granting of leave from AUC and AER (and its predecessor, Energy Resources Conservation Board)

• Leave requirements for appeals to CA – common feature of regulatory agencies in Alberta. However, CA standards apparently vary both among and within agencies

• See Shaun Fluker and Drew Yewchuk, “Seeking Leave to Appeal a Statutory Tribunal: What Principles Apply?”, Ablawg.ca (February 24, 2017)

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What relevance does standard of review have to determinations whether to grant leave to appeal? • While there is no clear or full answer in leave application decisions of single

judges of Alberta Court of Appeal, it appears as though balance supports relevance of standard of review in determination of whether there is a sufficiently meritorious case for granting leave (“serious, arguable point”)

I discuss this in “2016 Developments in Administrative Law Relevant to Energy Law and Regulation” (2017) 5 ERQ 15, at 29-30 and now see Morin v. Alberta (Utilities Commission), 2017 ABCA 20

• Where reasonableness is standard, more would have to shown on issue of “serious arguable point”. (Correctness – neutral?)

• What if standard of review not established by precedent?

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What relevance does standard of review have to determinations whether to grant leave to appeal (cont.)? • Slatter JA of Alberta Court of Appeal has recently referred to “What standard of

review is likely to be applied?” Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40, at para. 2. Cf. McDonald JA in FortisAlberta v Alberta (Utilities Commission), 2014 ABCA 264, at para. 26: Appropriate standard of review for panel hearing merits of appeal; not relevant to leave application.

• Later (at para. 30), he goes on to deal with a procedural unfairness challenge (and, in particular, failure to adjourn). “Specific discretion of the panel”; standard of review is “very high”

See also Rowbotham JA, in Morin, supra, at para. 12 (denial of extension of time)

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What Amount to Questions of Law and Jurisdiction? • Obviously pure questions of law (statutory interpretation; constitutional law (if

not otherwise excluded from ambit of tribunal’s authority); issues of common or civil law)

• Subject to one possible reservation, not questions of fact, policy and general merits, including balancing of factors involved in exercise of statutory discretion

See Bokenfohr, supra, at para. 3; Natural Resource Gas Ltd. v Ontario Energy Board, supra, at para. 8

• Not even mixed questions of fact, law and policy, save to extent that readily extricable question of law or legal principle

See Bokenfohr, ibid.

• Includes issues of natural justice and procedural fairness

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What Amount to Questions of Law and Jurisdiction? (cont.) • Does “jurisdiction” have a life? • SCC has called its continued existence into question at least in a practical sense See in particular, Rothstein J in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654, at paras. 33-43

• Nonetheless, in both seeking leave and on merits of any appeal, appellants will want to rely on concept to extent that gets them to correctness review

• Might also open up possibility of review on facts and mixed questions of law and fact on basis of historic “jurisdictional fact” doctrine, though examples not readily found

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What Amount to Questions of Law and Jurisdiction? (cont.) • Leaving aside possible jurisdictional fact category, difficult to conceive of

questions of jurisdiction that are not also questions of law • In Canadian National Railway Co. v Emerson Milling Inc., 2017 FCA 79, involving

appeal on leave from Canadian Transportation Agency on questions of law or jurisdiction, Stratas JA for FCA holds that, nonetheless, legislative perpetuation of questions of jurisdiction involves something that is not subsumed within questions of law. It adds “something above and beyond the phrase “question of law”” (para. 17)

• Nonetheless, he accepts that questions of law that are extricable from a question of mixed fact and law come within reach of questions of law

• What then does he see as left for “jurisdiction”?

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What Amount to Questions of Law and Jurisdiction? (cont.) • His response to this conundrum rests in domain of procedural fairness and a

sense that procedural fairness issues were considered questions of jurisdiction rather than questions of law. This enables judicial scrutiny under “jurisdiction” of procedural fairness issues “even if those issues are factually suffused” (para. 19)

• Quaere whether this is a strained interpretation of what Parliament and provincial legislatures intended by preserving “jurisdiction” as a category alongside “law” in a whole range of provisions of this kind. Likely, they never thought about it and simply saw no reason to change traditional or conventional language.

• However, notion of factually infused questions of procedural fairness also leaves open the possibility of jurisdictional fact review

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III. Issues dealt with in 5 ERQ 15

• Pending SCC decisions on role of regulatory agencies in duty to consult indigenous peoples

• Scope of duty to consult in GIC role in pipeline approval process • Administrative Law dimensions of FCA judgment in Northern Gateway

application • Allegations of NEB bias in Energy East application • Relevance of standard of review in applications for leave to appeal • Energy regulator exposure to liability for violation of Charter rights

and freedoms (Ernst)

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Coordinates

David Mullan, Emeritus Professor, Faculty of Law, Queen’s University, Kingston, Ontario, K7L 3N6 Phone and Fax: 613-546-1297 [email protected] Mailing Address: 103-185 Ontario St., Kingston, Ontario, K7L 2Y7 May 4, 2017

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mailto:[email protected]

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