Alberta (Attorney General) et al. v. Westcoast Energy Inc., (1997) 208 N.R. 154 (FCA)

• Judge: Marceau, Desjardins and McDonald, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 14, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 208 N.R. 154 (FCA)

Alta. (A.G.) v. Westcoast Energy Inc. (1997), 208 N.R. 154 (FCA)

MLB headnote and full text

Her Majesty The Queen in right of the Province of Alberta as represented by the Attorney General of the Province of Alberta and the Alberta Minister of Energy (applicant) v. Westcoast Energy Inc. (respondent) and National Energy Board and Nova Gas Transmission Ltd. (intervenors)

(A-558-96)

Indexed As: Alberta (Attorney General) et al. v. Westcoast Energy Inc.

Federal Court of Appeal

Marceau, Desjardins and McDonald, JJ.A.

January 14, 1997.

Summary:

Novagas Clearinghouse Pipeline Ltd. sought approval from the National Energy Board (the Board) for the construction and operation of a 16.5 kilometre natural gas pipeline across the British Columbia and Alberta border, to connect facilities in each province. The application was made pur­suant to s. 58 of the National Energy Board Act which allowed the Board to summarily consider and grant an application for con­struction of an interprovincial pipeline which was less than 40 kilometres long. Westcoast Energy Inc. questioned the Board's statutory jurisdiction to review the pipeline under the exceptional summary procedure of s. 58, rather than the normal one required by s. 52, because the pipeline was part of a larger project which was over 40 kilometres long. The Board granted Novagas's application, but purported to leave the issue of its juris­diction over the applied-for facilities sepa­rate and distinct. Westcoast sought leave to appeal the Board's decision. Leave was denied where the pipeline was already com­pleted. The Board filed a Reference con­cerning its constitutional jurisdiction over the British Columbia and Alberta facilities. The Province of Alberta applied to quash the Reference.

The Federal Court of Appeal quashed the Reference. The court lacked jurisdiction to determine the issue because, when the Reference was filed, the pipeline and the connecting facilities were already built and in full operation, the former with the ap­proval of the Board and the latter with the approval of the provincial authorities. There was no proceeding pending respecting the legal status of any of them.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The National Energy Board approved the construction and operation of a 16.5 kilometre natural gas pipeline across the British Columbia and Alberta border, to connect facilities in each prov­ince - The application was under the exceptional summary procedure of s. 58 of the National Energy Board Act, which allowed the Board to approve interprovincial pipelines less than 40 kilo­metres long - The pipeline was part of a larger project which was over 40 kilo­metres long - The Board purported to leave the issue of its constitutional juris­diction over the applied-for facilities separate and distinct and filed a Reference respecting its jurisdiction - The Federal Court of Appeal held that it lacked juris­diction to determine the issue because, when the Reference was filed, the pipeline and the connecting facilities were already built and in full operation - There was no proceeding pending respecting the legal status of any of them.

Cases Noticed:

Westcoast Energy Inc. v. National Energy Board et al., [1996] 2 F.C. 263; 193 N.R. 321 (F.C.A.), refd to. [para. 11].

Reference Re Public Service Staff Re­lations Board (1973), 38 D.L.R.(3d) 437 (F.C.A.), refd to. [para. 16].

Martin Service Station Ltd. v. Minister of National Revenue, [1974] 1 F.C. 398; 1 N.R. 464 (F.C.A.), refd to. [para. 16].

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1976] 2 F.C. 20 (F.C.A.), rev'd. [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 16].

Canadian Arctic Gas Pipeline Ltd. et al., In Re - see Committee for Justice and Liberty Foundation et al. v. National Energy Board et al.

Statutes Noticed:

National Energy Board Act, R.S.C. 1985, c. N-7, sect. 58 [para. 6].

Counsel:

C.D. O'Brien, Q.C., and H.M. Kay, for Her Majesty the Queen in Right of the Province of Alberta;

W.I.C. Binnie, Q.C., and Robin Sirett, for Westcoast Energy Inc.;

Judith Hanebury, for the National Energy Board;

Paul J. Pearlman, for the Attorney General of British Columbia;

C. Kemm Yates and Bernard J. Roth, for Novagas Clearinghouse Ltd. Partnership;

Frank R. Foran, Q.C., and Edgar J. Sexton, Q.C., for Nova Gas Trans­mission Ltd.

Solicitors of Record:

Bennett Jones Verchere, Calgary, Alberta, for Her Majesty The Queen in Right of the Province of Alberta et al.;

McCarthy Tétrault, Vancouver, British Columbia, for Westcoast Energy Inc.;

Legal Services National Energy Board, Calgary, Alberta, for the National Energy Board;

Fuller, Pearlman, Victoria, British Columbia, for the Attorney General of British Columbia;

Milner Fenerty, Calgary, Alberta, for Novagas Clearinghouse Ltd. Partnership;

Howard Mackie, Calgary, Alberta, and Osler, Hoskin & Harcourt, Toronto, Ontario, for Nova Gas Transmission Ltd.;

Milner Fenerty, Calgary, Alberta, for Beau Canada Exploration Ltd., Gulf Canada Resources Ltd. and Ohio Resources Ltd.;

N.J. Schultz, Canadian Association of Petroleum Producers, Calgary, Alberta, for the Canadian Association of Petroleum Producers;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the Attorney General of Canada;

Department of Justice, Winnipeg, Mani­toba, for the Attorney General of Mani­toba;

Department of Justice, Fredericton, New Brunswick, for the Attorney General of New Brunswick;

Department of Justice, St. John's, New­foundland, for the Attorney General of Newfoundland;

Department of Justice, Halifax, Nova Scotia, for the Attorney General of Nova Scotia;

Ministry of the Attorney General, Toronto, Ontario, for the Attorney General of Ontario;

Department of Justice, Quebec, Quebec, for the Attorney General of Quebec;

Department of Justice, Regina, Saskatchewan, for the Attorney General of Saskatchewan;

Blake, Cassels & Graydon, Ottawa, Ontario, for Union Gas Ltd.;

Russell & Dumoulin, Vancouver, British Columbia, for BC Gas Utility Ltd.

This application was heard in Vancouver, British Columbia, on January 13 and 14, 1997, by Marceau, Desjardins and McDonald, JJ.A., of the Federal Court of Appeal.

Marceau, J.A., delivered the following judgment orally on January 14, 1997.