Forestethics Advocacy Association et al. v. Northern Gateway Pipelines Inc. et al., 2015 FCA 27, 2015 FCA 26

Date: 20150129

Docket: A-514-14

Citation: 2015 FCA 26

Present:          STRATAS J.A.

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on January 29, 2015.

Date: 20150129

Docket: A-514-14

Citation: 2015 FCA 26

Present:          STRATAS J.A.

REASONS FOR ORDER

STRATAS J.A.

[1]               This motion arises within file A-514-14. This is one of the matters seeking review of the decisions concerning the Northern Gateway Pipeline Project. It has been consolidated with those matters (lead file A-437-14).

[2]               In this individual file, the National Energy Board moves to be added as a respondent in file A-514-14. It relies on subsection 22(3) of the National Energy Board Act, R.S.C. 1985, c. N-7. That provision allows it to be heard on appeal, but it does not dictate what status the Board must have in the Court.

[3]               The appellants oppose, submitting that the National Energy Board should be named only as an intervener under Rule 109. The basis for the appellants’ opposition is that the Board’s participation when one of its own decisions is being reviewed is limited. Its submissions:

•                must be relevant to the issues in the judicial review and useful to the Court; and

•                must not offend the fundamental principles of the finality of the tribunal’s decision and the impartiality of the tribunal in future proceedings.

(see, e.g., Canada (Attorney General) v. Quadrini, 2010 FCA 246.)

[4]               The Board is a respondent in the consolidated matters before the Court (lead file A-437-14). It has that status because it has been named as a respondent in a number of the proceedings that make up the consolidated matter.

[5]               Further, it is evident from the Board’s submissions in reply that it is well aware of the limits on its participation. It knows that it cannot exercise all of the normal rights of a respondent given its status as one of the administrative decision-makers whose decision is being reviewed.

[6]               If the appellants take the view that the Board is exceeding its proper limits, they can raise the matter at the hearing of the consolidated matter or, if necessary, bring a motion before the hearing.

[7]               In a technical sense, this file (A-514-14) is an appeal from the Board’s decision and so the Board should be a respondent. An order shall issue to that effect.

[8]               In this same file, the appellants seek to add the Attorney General of Canada as a respondent to these proceedings. The motion is on consent. My order will also grant this relief.

"David Stratas"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: