Burnaby (City) v. Trans Mountain Pipeline ULC et al., (2015) 370 B.C.A.C. 51 (CA)

• Judge: Donald, D. Smith and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 13, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 370 B.C.A.C. 51 (CA);2015 BCCA 78

Burnaby v. Trans Mountain Pipeline (2015), 370 B.C.A.C. 51 (CA);

    635 W.A.C. 51

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MR.015

City of Burnaby (appellant/plaintiff) v. Trans Mountain Pipeline ULC (respondent/defendant) and The National Energy Board (respondent/defendant)

(CA042220; 2015 BCCA 78)

Indexed As: Burnaby (City) v. Trans Mountain Pipeline ULC et al.

British Columbia Court of Appeal

Donald, D. Smith and Groberman, JJ.A.

February 13, 2015.

Summary:

The City of Burnaby sought leave to appeal the order of a Supreme Court judge, denying its application to enjoin the employees and agents of Trans Mountain Pipeline ULC from carrying on work in Burnaby that contravened the City's bylaws.

The British Columbia Court of Appeal, per Neilson, J.A., dismissed the application. See 364 B.C.A.C. 63; 625 W.A.C. 63. The rule against collateral attack foreclosed consideration of the merits of an appeal in this court as the issues in question had been dealt with by a binding and conclusive order of the National Energy Board. Only the Federal Court of Appeal could nullify or reverse that order. To permit Burnaby to bring an appeal in this court would unquestionably and unjustifiably intrude on that proceeding and constitute an abuse of process. Burnaby applied under s. 9(6) of the Court of Appeal Act to vary Neilson, J.A.'s order.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - See paragraphs 1 to 13.

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - See paragraphs 1 to 13.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - See paragraphs 1 to 13.

Cases Noticed:

Haldorson et al. v. Coquitlam (City) (2000), 149 B.C.A.C. 197; 244 W.A.C. 197; 3 C.P.C.(5th) 225; 2000 BCCA 672, appld. [para. 3].

Counsel:

G.J. McDade, Q.C., and M.L. Bradley, for the appellant;

W.C. Kaplan, Q.C., and M.P. Good, for the respondent.

This application was heard at Vancouver, B.C., on February 13, 2015, by Donald, D. Smith and Groberman, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following oral decision for the court on the same date.