Docket: A-273-13
Citation: 2014 FCA 245
|
CORAM:
|
TRUDEL J.A.
STRATAS J.A.
NEAR J.A.
|
|
BETWEEN:
|
|
|
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.
[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 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
[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.
(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:
|
52. (2) In making its recommendation, the
Board shall have regard to all considerations that appear to it to be
directly related to the pipeline and to be relevant, and may have regard to
the following:
|
52. (2) En faisant sa recommandation, l’Office
tient compte de tous les facteurs qu’il estime directement liés au pipeline
et pertinents, et peut tenir compte de ce qui suit :
|
|
(a) the
availability of oil, gas or any other commodity to the pipeline;
|
a) l’approvisionnement du pipeline en
pétrole, gaz ou autre produit;
|
|
(b) the existence of markets, actual or
potential;
|
b) l’existence de marchés, réels ou
potentiels;
|
|
(c) the economic feasibility of the
pipeline;
|
c) la faisabilité économique du pipeline;
|
|
(d) the financial responsibility and
financial structure of the applicant, the methods of financing the pipeline
and the extent to which Canadians will have an opportunity to participate in
the financing, engineering and construction of the pipeline; and
|
d) la
responsabilité et la structure financières du demandeur et les méthodes de
financement du pipeline ainsi que la mesure dans laquelle les Canadiens
auront la possibilité de participer au financement, à l’ingénierie ainsi qu’à
la construction du pipeline;
|
|
(e) any public interest that in the Board’s
opinion may be affected by the issuance of the certificate or the dismissal
of the application.
|
e) les conséquences sur l’intérêt public que peut, à
son avis, avoir la délivrance du certificat ou le 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.
[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
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 certificate, the Board shall consider the representations
of any person who, in the Board’s opinion, is directly affected by the
granting or refusing of the application, and it may consider the
representations of any person who, in its opinion, has relevant information
or expertise. A decision of the Board as to whether it will consider the
representations of any person is conclusive.
|
55.2 Si une demande de certificat est
présentée, l’Office étudie les observations de toute personne qu’il estime
directement touchée par la délivrance du certificat ou le rejet de la demande
et peut étudier les observations de toute personne qui, selon lui, possède
des renseignements pertinents ou une expertise appropriée. La décision de
l’Office d’étudier ou non une observation est définitive.
|
[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 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.
[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
[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 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 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.
[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
(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.
(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: 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 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 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
[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 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 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 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 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 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 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 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 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. 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.”
[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. 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 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.
[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, 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.
[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.
(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 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.
[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.
[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 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:
•
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
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 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 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.)
•
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.
(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 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 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.
•
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.
[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 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, 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 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.
[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.
[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 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 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 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
[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"
“I agree
Johanne Trudel J.A.”
“I agree
D.G.
Near J.A.”
Email this Content