Docket:
A-273-13
Citation:
2013 FCA 236
Present: STRATAS J.A.
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BETWEEN:
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FOREST ETHICS ADVOCACY ASSOCIATION AND DONNA SINCLAIR
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Applicants
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and
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THE NATIONAL ENERGY BOARD AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR ORDER
STRATAS J.A.
[1]
Enbridge Pipelines Inc. and Valero Energy Inc. each move for an
order adding it as a party respondent in this application for judicial review.
In the alternative, they each move for an order adding it as an intervener.
A. The nature of the
application for judicial review
[2]
The application for judicial review comes to
this Court under paragraph 28(1)(f) of the Federal Courts Act,
R.S.C. 1985, c. F-7. It arises from proceedings before the National Energy
Board.
[3]
The proceedings before the National Energy Board
concern Enbridge’s application to the Board for approval to expand the capacity
of a pipeline and to reverse a segment of that pipeline. Also included in
Enbridge’s application is a request to allow the pipeline to transport bitumen,
the petroleum product derived from the Alberta oil sands. The Board’s
proceedings are ongoing.
[4]
The application for judicial review targets a
section recently added to the National Energy Board Act, R.S.C. 1985, c.
N-7, and the Board’s interpretation and application of that section.
[5]
The section, section 55.2, affects who may make
representations to the Board. Section 55.2 reads as follows:
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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.
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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.
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[6]
In their notice of application in this Court,
the applicants say that the Board interpreted its power under this section “to
create a rigorous application process for those individuals and groups who seek
to participate in [the Board’s] proceedings.” Among other things, the Board
required those intending to participate to complete a detailed form.
[7]
The applicants, Forest Ethics Advocacy
Association and Donna Sinclair, are, respectively, an environmental
organization and an individual. The Board denied Donna Sinclair the right to
submit a letter of comment on Enbridge’s application for approval. The
applicants seek a declaration that section 55.2 violates the guarantee of
freedom of expression in subsection 2(b) of the Charter and, thus, is
invalid. They also seek an order setting aside the Board’s decision to issue
the form and require that it be completed, and an injunction preventing the
Board from acting until the judicial review has been decided. Finally, they seek
an order requiring the Board to accept all letters of comment from those
wanting to participate in the proceedings.
[8]
Enbridge, the applicant for approval before the Board,
is the proponent of the pipeline project under scrutiny. Valero is an
intervener in the Board’s proceedings, supporting Enbridge’s application for
approval. Valero stands to benefit from a Board approval of Enbridge’s
application. Approval would permit Valero to receive western Canadian crude
oil, oil that is cheaper than that from offshore sources. To that end, Valero has
entered into a transportation services agreement with Enbridge, contingent upon
the approval of Enbridge’s project. Valero plans to invest between $110 million
and $200 million to upgrade its facilities in order to handle the anticipated
supply of western Canadian crude oil.
B. The provisions of the Federal Courts Rules that
govern these motions
[9]
Three provisions in the Federal Courts Rules,
SOR/98-106, govern the motions before me: Rule 104(1)(b) (adding a
party); Rule 109(1) and (2) (intervening in proceedings); and Rule 303(1)(a)
(who must be named as a respondent to an application for judicial review).
[10]
These Rules read as follows:
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104. (1) At any time, the Court may
…
(b) order that a person who ought to have
been joined as a party or whose presence before the Court is necessary to
ensure that all matters in dispute in the proceeding may be effectually and
completely determined be added as a party, but no person shall be added as a
plaintiff or applicant without his or her consent, signified in writing or in
such other manner as the Court may order.
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104. (1) La Cour peut, à tout moment,
ordonner :
…
b) que soit
constituée comme partie à l’instance toute personne qui aurait dû l’être ou
dont la présence devant la Cour est nécessaire pour assurer une instruction
complète et le règlement des questions en litige dans l’instance; toutefois,
nul ne peut être constitué codemandeur sans son consentement, lequel est
notifié par écrit ou de telle autre manière que la Cour ordonne.
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109. (1) The Court may, on motion, grant leave to any
person to intervene in a proceeding.
(2) Notice of a motion under subsection (1)
shall
(a) set out the full name and address of
the proposed intervener and of any solicitor acting for the proposed
intervener; and
(b) describe how the proposed intervener
wishes to participate in the proceeding and how that participation will
assist the determination of a factual or legal issue related to the
proceeding.
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109. (1) La Cour peut, sur requête, autoriser toute
personne à intervenir dans une instance.
(2) L’avis d’une requête présentée pour
obtenir l’autorisation d’intervenir :
a) précise
les nom et adresse de la personne qui désire intervenir et ceux de son
avocat, le cas échéant;
b) explique
de quelle manière la personne désire participer à l’instance et en quoi sa
participation aidera à la prise d’une décision sur toute question de fait et
de droit se rapportant à l’instance.
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303. (1) Subject to subsection (2), an
applicant shall name as a respondent every person
(a) directly affected by the order sought
in the application, other than a tribunal in respect of which the application
is brought; …
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303. (1) Sous réserve du paragraphe (2), le demandeur
désigne à titre de défendeur :
a) toute personne directement touchée par
l’ordonnance recherchée, autre que l’office fédéral visé par la demande;…
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C. Should
Enbridge and Valero be added as respondents?
[11]
Under Rule 104(1)(b), parties may be added as respondents where
(1)
they should have been respondents in the first place; or
(2)
their presence before the Court is necessary.
Satisfaction of either of these
requirements is sufficient. Enbridge and Valero say they satisfy both
requirements.
(1) Should
Enbridge and Valero have been respondents in the first place?
[12]
Whether Enbridge and Valero should have been respondents in the
first place is determined by Rule 303(1)(a). Under that rule, those who
are “directly affected” by the order sought in the application for judicial
review must be named as respondents.
[13]
What is the meaning of “directly affected” in Rule 303(1)(a)?
There are very few authorities on point.
[14]
All parties cite the order made by this Court in Sweetgrass
First Nation v. National Energy Board, file 08-A-30 (May 30, 2008) but that
order does not shed light on the meaning of “directly affected” in Rule 303(1)(a).
[15]
All parties cite Brokenhead Ojibway First Nation v. Canada (Attorney General), 2008 FC 735. However, that case is of limited usefulness. In
Brokenhead, the Federal Court did not examine in any detail the words
“directly affected.”
[16]
Further, most of the cases placed before the Federal Court in Brokenhead
were decided under Rule 1602(3) of the old Federal Court Rules, C.R.C.
1978, c. 663 (now repealed) or relied upon cases interpreting old Rule
1602(3). But old Rule 1602(3) is quite different from today’s Rule 303(1)(a).
[17]
Old Rule 1602(3) required that an “interested person who [was] adverse
in interest to the applicant” before the tribunal being reviewed be named as a
respondent. Rule 303(1)(a) is narrower, requiring that a party be
“directly affected” by the order sought in the application for judicial review.
Accordingly, cases based on old Rule 1602(3) should be regarded with caution.
[18]
The words “directly affected” in Rule 303(1)(a) mirror
those in subsection 18.1(1) of the Federal Courts Act. Under that
subsection, only the Attorney General or “anyone directly affected by the matter
in respect of which relief is sought” may bring an application for judicial
review. Rule 303(1)(a) restricts the category of parties who must be
added as respondents to those who, if the tribunal’s decision were different,
could have brought an application for judicial review themselves.
[19]
Accordingly, guidance on the meaning of “direct interest” in Rule
303(1)(a) can be found in the case law concerning the meaning of “direct
interest” in subsection 18.1(1) of the Federal Courts Act. This was the
approach of the Federal Court in Reddy-Cheminor, Inc. v. Canada, 2001
FCT 1065, 212 F.T.R. 129, aff’d 2002 FCA 179, 291 F.T.R. 193 and seems to have
been the approach implicitly adopted by the Federal Court in Cami
International Poultry Inc. v. Canada (Attorney General), 2013 FC 583 at
paragraphs 33-34.
[20]
A party has a “direct interest” under subsection 18.1(1) of the Federal
Courts Act when its legal rights are affected, legal
obligations are imposed upon it, or it is prejudicially affected in some direct
way: League for Human Rights of B'Nai Brith Canada v. Odynsky, 2010 FCA
307 at paragraphs 57-58; 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.
[21]
Translating this to Rule 303(1)(a), the
question is whether the relief sought in the
application for judicial review will affect a party’s legal rights, impose
legal obligations upon it, or prejudicially affect it in some direct way. If
so, the party should be added as a respondent. If that party was not added as a
respondent when the notice of application was issued, then, upon motion under
Rule 104(1)(b), it should be added as a respondent.
[22]
The relief sought in the
judicial review is described in paragraph 7, above. The interests of Enbridge
and Valero are described in paragraph 8, above.
[23]
I accept that the relief
sought in the judicial review, if granted, would cause real, tangible prejudice
to Enbridge and Valero within the meaning of the Odynsky test, not just
general inconvenience or general impact on their businesses as a result of
detrimental or unhelpful jurisprudence. But Enbridge and Valero must go further
under the Odynsky test and show that they will be prejudiced in a direct
way.
[24]
In Enbridge’s case, the
prejudice is direct. The Board’s proceeding is about whether Enbridge’s project
should be approved. If the relief sought in the judicial review is granted, the
proceedings before the Board will have to be rerun to some extent, delaying
Enbridge’s project. Further, if the relief sought is granted, potentially many
persons and organizations from different perspectives will have rights of
participation where, before, they did not. The Board might accept some of the
new participants’ arguments, leading to the rejection of Enbridge’s application
for approval of its project. The risk of that happening directly affects
Enbridge, the proponent of the project.
[25]
Valero, however, stands in a
different position. It is in a commercial relationship with Enbridge, the
proponent of the project. The success of that relationship depends upon the
approval of the project. But it is not itself the proponent of the project.
[26]
Those in a commercial
relationship with the proponent of a project who stand to gain from the
approval of the project of course will suffer financially if the project is not
approved. But that financial interest is merely consequential or indirect.
[27]
Valero stands in the same
position as any suppliers of materials for the project and any workers involved
in the construction of the project. The project will provide them with income
and work. But if it is not approved, it will not go forward, and the income and
work will be lost. Their interests, no doubt significant, are consequential or
indirect, contingent on the proponent of the project getting its approval.
[28]
One way to test this result
is to consider a hypothetical situation and the concept of “direct interest”
under subsection 18.1(1) of the Federal Courts Act. Suppose that the
Board rules against Enbridge’s application for approval. Suppose that Enbridge
decides not to bring an application for judicial review. In those
circumstances, could Valero maintain that since it stood to benefit economically
from the approval it has a “direct interest” and, thus, has standing to bring
an application for judicial review? Could all others who also stood to benefit economically
in some way from the pipeline approval – construction companies and their employees,
suppliers and transporters of construction materials, potential buyers of refined
petroleum products – say the same thing? I think not.
[29]
I do not doubt that Valero’s
interest is most significant: see Exhibit “A” to the Affidavit of Louis
Bergeron. However, Rule 303(1)(a) refers to a “direct interest,” not a
“significant interest.” Valero does not have a “direct interest” and so it
could not have been named as a respondent in the first place.
(2) Is Valero’s presence in the judicial
review necessary?
[30]
Valero also submits that it
should now be a respondent in the judicial review because it falls under the
second branch of under Rule 104(1)(b): its presence
before the Court is “necessary to ensure that all matters in dispute in the
application for judicial review may be effectually and completely determined.”
[31]
To succeed in this submission, Valero must
satisfy the demanding test of necessity set out in cases such as Shubenacadie
Indian Band v. Canada (Minister of Fisheries and Oceans), 2002 FCA 509, 236
F.T.R. 160 and Laboratoires Servier v. Apotex Inc., 2007 FC 1210.
[32]
In my view, Valero has not satisfied that test.
It has not pointed to “a question in the [application for judicial review]
which cannot be effectually and completely settled unless [it] is a party”: Shubenacadie
Indian Band, supra at paragraph 8, citing Amon v. Raphael Tuck
& Sons Ltd., [1956] 1 Q.B. 357 at page 380.
[33]
Therefore, Valero’s motion to be added as a
respondent must fail.
D. Should
Valero be permitted to intervene?
[34]
As we have seen, not all parties before an
administrative tribunal will be parties with a “direct interest” or necessary
for the judicial review – in other words, not all parties will be entitled to
be respondents in the application for judicial review. But many may be able to
satisfy the test for intervention and become interveners in the judicial
review. Their level of participation as interveners varies depending on the
circumstances. Where warranted, their level of participation can approach that
of respondents. The grand prize of being a respondent is one thing. But the
consolation prize of being an intervener is often not bad.
[35]
Mindful of this, Valero seeks an order permitting it to intervene
in the judicial review. However, Valero has failed to discharge the legal burden
of proof upon it.
[36]
Under Rule 109(2)(b), Valero must describe “how [its]
participation will assist the determination of a factual or legal issue related
to the proceeding.” This requires not just an assertion that its
participation will assist, but a demonstration of how it will
assist. Valero has not done this.
[37]
In its notice of motion, Valero submits that “there is a
justiciable issue and a veritable public interest that could benefit from
Valero’s participation in this proceeding.” This does not discharge the burden
of proof imposed upon it by Rule 109(2)(b).
[38]
In the affidavit offered in support of its motion, Valero asserts
that it “has a perspective which is unique and distinct from that of Enbridge”
as “a refiner which proposes to access western crude” through the pipeline.
Valero does not explain how a refiner’s perspective differs from that of a
pipeline builder and how that difference will assist in determining the
administrative law and constitutional law issues before the Court.
[39]
Finally, in its written submissions, Valero asserts – without explanation
– that the “interests of justice would be served” and the Court “would [be]
assist[ed]…in coming to a fair and just conclusion” by allowing it to
intervene. It says nothing more. The Court is left to speculate as to what role
Valero would play as an intervener and whether that role would be of any
assistance at all.
E. Disposition of the motions
[40]
Enbridge Pipelines Inc.
shall be added as a party respondent and the style of cause shall be amended to
reflect that fact. It shall receive its costs of the motion in any event of the
cause. The motion of Valero Energy Inc. shall be dismissed with costs in any
event of the cause.
“David Stratas”
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