Date:
20111215
Dockets: A-474-10
A-296-10
A-297-10
A-340-10
Citation: 2011 FCA 360
CORAM: BLAIS C.J.
EVANS J.A.
LAYDEN-STEVENSON J.A.
Docket:
A-474-10
BETWEEN:
GEOPHYSICAL SERVICE
INCORPORATED
Appellant
and
NATIONAL ENERGY BOARD
and
THE ATTORNEY GENERAL OF CANADA
Respondents
and
THE ATTORNEY GENERAL OF NOVA SCOTIA
Intervener
Dockets: A-296-10
A-297-10
A-340-10
AND BETWEEN:
GEOPHYSICAL SERVICE
INCORPORATED
Applicant
and
NATIONAL ENERGY BOARD
and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Ottawa, Ontario, on December 15, 2011)
EVANS J.A.
[1]
At issue
in these proceedings are three letters written in May, July and August 2010 on
behalf of the National Energy Board (NEB) in response to correspondence from
Geophysical Service Incorporated (GSI). The letters set out the NEB’s
understanding of the law relating to the period for which it must keep
confidential geophysical data that GSI was required to submit to the NEB
pursuant to the terms on which it had authorized GSI to conduct a non-exclusive
marine seismic survey in the Northern Labrador Sea in 2008.
[2]
The
letters state that the NEB is bound by the Canadian Petroleum Resources Act,
R.S.C. 1985, c. 36 (2nd Supp.), subparagraph 101(7)(d)(ii) (CPRA) not to
disclose for five years the information filed by GSI, and that a policy
initiated by Indian and Northern Affairs Canada (INAC), and adopted by the NEB,
requires that the information be kept confidential for another ten years. Consequently,
the information at issue could not be published until 2023. The letters also
state that it is the policy of the Board to disclose to the public the kind of
information submitted by GSI, after the expiry of the fifteen-year period.
These provisions have been in place for many years.
[3] NEB explained to GSI the rationale for this
delay in the disclosure of non-exclusive seismic data: to strike a balance
between the public interest in the development and exploration of
frontier lands, and explorers’
interest in protecting the confidentiality of the commercially sensitive data
that they had collected. The NEB stated that it was not
persuaded that it was appropriate to modify the current policy on disclosure.
[4] The letters were
written in the course of a series of meetings and communications in which NEB staff urged GSI to discharge its
reporting obligations, and GSI sought undertakings from the NEB that it would keep the information
confidential for longer than the total of fifteen years prescribed by the CPRA
and the INAC policy.
[5] GSI took the
position that the fifteen-year period of confidentiality does not supersede the
protections provided by private law: the Copyright Act and the law
respecting confidential information, in particular. Unable to persuade the NEB to its view of the law, GSI commenced
the present proceedings in this Court (an appeal and three applications for
judicial review), in order to challenge the view of the law and policy
expressed in the letters written on behalf of the NEB.
[6] We are all of the
opinion that GSI’s appeal and applications for judicial review should be
dismissed on the ground that they are premature. Since the NEB is currently required to keep GSI’s
information confidential until 2023, and has no intention of disclosing it
earlier (assuming no change in the law), the issues raised by GSI are not yet
ripe for decision.
[7] Prematurity is a
well established basis on which courts may exercise their discretion to refuse
to grant relief on an application for judicial review: see Donald J.M. Brown
and John M.
Evans, Judicial Review of
Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing Inc., 2011), 3-62
and following.
[8] While not generally
regarded as discretionary in the same way as applications for judicial review,
appeals may also be dismissed for prematurity because, among other reasons, the
issue raised is not ripe for decision: Donald J.M. Brown, Civil Appeals,
looseleaf (Toronto: Canvasback Publishing Inc.,
2011), 5-21 and following.
[9] The public
interests in both the conservation of scarce judicial resources and judicial
restraint militate against the courts unnecessarily deciding legal questions
when legal rights and other protected interests have not been in infringed are
not likely to be in peril in the near future. Moreover, since it is impossible
to know now what the relevant law and policy will be in 2023 (or closer
thereto), or what the NEB’s position may then be, it is difficult to see what
useful purpose could be served by the Court’s answering the questions put to it
by GSI in these proceedings.
[10] Whether the NEB is
obliged to refrain from disclosing the information for some further period is
also purely hypothetical, and for the reasons set out above, courts are also
reluctant to answer hypothetical questions: Canadian Council for Refugees v.
Canada, 2008 FCA 229, [2009] 3 F.C.R. 136 at paras. 109-110.
[11] That a ruling on the
substantive issues raised in the appeal and the applications for judicial
review may be useful to GSI in the action that it has commenced in the Alberta
Court of Queen’s
Bench with respect to other
data does not warrant a positive exercise of this Court’s discretion to
determine the issues before us. Nor is it sufficient that the industry might
like to know now whether the present law and policy on disclosure supersede any
other legal rights relating to confidential or copyrighted material. Courts do
not normally render advisory opinions.
[12] It is not clear from
GSI’s submissions in the proceedings before us whether, or to what extent, GSI
alleges, let alone has established, that its 2008 non-exclusive seismic data
are protected by copyright or the law relating to confidential information.
That there is a dispute between the NEB
and GSI as to whether it is entitled to protection for its non-exclusive
seismic data beyond the fifteen-year period does not make these proceedings
non-hypothetical. The dispute poses no present threat to whatever private law
rights GSI may be asserting.
[13] Finally, we would
emphasize that we have been able to dispose of these proceedings without
determining whether the letters in question constitute either a “decision or
order” of the NEB so as to be subject to appeal under section 22 of the National
Energy Board Act, R.S.C. 1985, c. N-7, or a “decision, order, act or
proceeding” for the purpose of enabling the Court to grant declaratory relief
under paragraph 18.1(3)(b) of the Federal Courts Act, R.S.C.
1985, c. F-7. Nothing in these reasons should be taken as expressing a view on
these questions.
[14] For these reasons,
GSI’s appeal and its applications for judicial review will be dismissed, with
one set of costs payable by GSI to the Attorney General of Canada and the
Attorney General of Nova Scotia. A copy of these reasons will be inserted in
each of the Court Files.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-474-10
STYLE OF CAUSE: Geophysical
Service Incorporated v. National Energy Board and The Attorney General of Canada and the Attorney General of Nova Scotia
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December 15, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: BLAIS C.J., EVANS AND LAYDEN-STEVENSON JJ.A.
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Mr. James T. Eamon, Q.C.
Ms. Erin Runnals
|
FOR THE APPELLANT
|
|
Mr. Andrew Hudson
Mr. Marko Vesely
Ms. Jaxine Oltean
Ms. Jamie Freitag
Ms. Alison Campbell
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
FOR THE INTERVENOR, THE ATTORNEY
GENERAL OF NOVA SCOTIA
|
SOLICITORS OF RECORD:
|
Gowlings Lafleur Henderson
LLP
Calgary, Alberta
|
FOR THE APPELLANT
|
|
National Energy Board
Calgary, Alberta
Myles J. Kirvan
Deputy Attorney General of Canada
Department of Justice Nova Scotia
Halifax, Nova Scotia
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF NOVA SCOTIA
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-296-10
STYLE OF CAUSE: Geophysical
Service Incorporated v. National Energy Board and The Attorney General of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December
15, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: BLAIS
C.J., EVANS AND LAYDEN-STEVENSON JJ.A.
DELIVERED FROM THE BENCH BY: EVANS
J.A.
APPEARANCES:
|
Mr. James T. Eamon, Q.C.
Ms. Erin Runnals
|
FOR THE APPELLANT
|
|
Mr. Andrew Hudson
Mr. Marko Vesely
Ms. Jaxine Oltean
Ms. Jamie Freitag
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
|
SOLICITORS OF RECORD:
|
Gowlings Lafleur Henderson LLP
Calgary, Alberta
|
FOR THE APPELLANT
|
|
National Energy Board
Calgary, Alberta
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: A-297-10
STYLE OF CAUSE: Geophysical
Service Incorporated v. National Energy Board and The Attorney General of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December
15, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: BLAIS
C.J., EVANS AND LAYDEN-STEVENSON JJ.A.
DELIVERED FROM THE BENCH BY: EVANS
J.A.
APPEARANCES:
|
Mr. James T. Eamon, Q.C.
Ms. Erin Runnals
|
FOR THE APPELLANT
|
|
Mr. Andrew Hudson
Mr. Marko Vesely
Ms. Jaxine Oltean
Ms. Jamie Freitag
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
|
SOLICITORS OF RECORD:
|
Gowlings Lafleur Henderson LLP
Calgary, Alberta
|
FOR THE APPELLANT
|
|
National Energy Board
Calgary, Alberta
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-340-10
STYLE OF CAUSE: Geophysical
Service Incorporated v. National Energy Board and The Attorney General of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December
15, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: BLAIS
C.J., EVANS AND LAYDEN-STEVENSON JJ.A.
DELIVERED FROM THE BENCH BY: EVANS
J.A.
APPEARANCES:
|
Mr. James T. Eamon, Q.C.
Ms. Erin Runnals
|
FOR THE APPELLANT
|
|
Mr. Andrew Hudson
Mr. Marko Vesely
Ms. Jaxine Oltean
Ms. Jamie Freitag
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
|
SOLICITORS OF RECORD:
|
Gowlings Lafleur Henderson LLP
Calgary, Alberta
|
FOR THE APPELLANT
|
|
National Energy Board
Calgary, Alberta
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT, NATIONAL ENERGY
BOARD
FOR THE RESPONDENT, THE ATTORNEY
GENERAL OF CANADA
|
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