Judd v. Energy Resources Conservation Board (Alta.) et al., 2011 ABCA 159

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Conrad, J.A.
• Citation: 2011 ABCA 159,(2011), 513 A.R. 260
• Date: 17 May 2011

Judd v. ERCB (2011), 513 A.R. 260; 530 W.A.C. 260 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MY.119

Mike Judd (applicant) v. Alberta Energy Resources Conservation Board and Shell Canada Limited (respondents)

(1101-0090-AC; 2011 ABCA 159)

Indexed As: Judd v. Energy Resources Conservation Board (Alta.) et al.

Alberta Court of Appeal

Conrad, J.A.

May 26, 2011.

Summary:

The Alberta Energy Resources Conservation Board allowed Shell Canada Ltd.'s application for an exploratory well and a fuel gas compressor, subject to certain conditions, and denied Shell's applications for a gas battery, fuel gas pipeline and production pipeline. Judd applied for leave to appeal.

The Alberta Court of Appeal, per Conrad, J.A., dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - [See second Mines and Minerals - Topic 9132 ].

Administrative Law - Topic 623

The hearing and decision - Evidence and proof - Opportunity to call evidence - [See third Mines and Minerals - Topic 9132 ].

Mines and Minerals - Topic 9132

Practice - Appeals - Leave to appeal - The Alberta Energy Resources Conservation Board allowed Shell Canada Ltd.'s application for an exploratory well and a fuel gas compressor, subject to certain conditions, and denied Shell's applications for a gas battery, fuel gas pipeline and production pipeline - Judd applied for leave to appeal, asserting that the Board failed to exercise its jurisdiction or give effect to the legal status of the grizzly bear species as an endangered species under the Wildlife Act in its findings - Specifically, Judd asserted that the Board failed to consider his evidence submitted after the deadline expired - The Alberta Court of Appeal, per Conrad, J.A., dismissed the application - Judd did not raise a serious arguable issue of law - The Board was entitled to make decisions on the basis of the evidence before it and was entitled to control its own process - It had specific powers to set deadlines - It provided deadlines for filing intervenor submissions, and those deadlines were extended once - Part of the reason for intervenor deadlines was to provide an adverse party the opportunity to rebut - Here, the Board exercised its discretion to exclude new evidence after its extended deadline on the basis of fundamental fairness - That was an exercise of discretion and there was no extricable error of law meeting the test for leave to appeal - See paragraphs 12 to 18.

Mines and Minerals - Topic 9132

Practice - Appeals - Leave to appeal - The Alberta Energy Resources Conservation Board allowed Shell Canada Ltd.'s application for an exploratory well and a fuel gas compressor, subject to certain conditions, and denied Shell's applications for a gas battery, fuel gas pipeline and production pipeline - Judd applied for leave to appeal, asserting that the Board failed to provide adequate reasons, specifically with respect to the grizzly bear issue - The Alberta Court of Appeal, per Conrad, J.A., dismissed the application - A reading of the whole decision demonstrated that the Board was alive to the grizzly bear issue and the new status of grizzly bears as an endangered species under the Wildlife Act - The reasons demonstrated that the Board recognized its obligation to consider whether the project was in the public interest having regard to the social, economic, and environmental effects of the project - The Board's reasons dealing specifically with wildlife appeared primarily at paragraphs 60-64 of the Decision - See paragraphs 19 to 24.

Mines and Minerals - Topic 9132

Practice - Appeals - Leave to appeal - The Alberta Energy Resources Conservation Board allowed Shell Canada Ltd.'s application for an exploratory well and a fuel gas compressor, subject to certain conditions, and denied Shell's applications for a gas battery, fuel gas pipeline and production pipeline - Judd applied for leave to appeal, asserting that the Board failed to accord him procedural fairness by refusing to admit testimony on the issue of the grizzly bears - The Alberta Court of Appeal, per Conrad, J.A., dismissed the application - A reasonable opportunity to furnish evidence did not include a right to file late evidence, particularly where reasonable time limits had been imposed and extended - Here the evidence was submitted less than a week before the hearing and Judd refused to allow Shell onto his property to investigate the alleged grizzly bear den - The Board was not obligated to accept the late evidence - See paragraphs 25 to 29.

Mines and Minerals - Topic 9132

Practice - Appeals - Leave to appeal - The Alberta Energy Resources Conservation Board allowed Shell Canada Ltd.'s application for an exploratory well and a fuel gas compressor, subject to certain conditions, and denied Shell's applications for a gas battery, fuel gas pipeline and production pipeline - Judd applied for leave to appeal on the ground that the mineral surface lease for the subject lands issued by Alberta Department of Sustainable Resource Development (SRD) in June 2006 did not meet the current requirements of the SRD - The Alberta Court of Appeal, per Conrad, J.A., dismissed the application - This did not raise a question of law or jurisdiction in respect of the Board's decision - The Board did not issue mineral leases - The authority to do so was vested in the SRD under the Public Lands Act - If Judd objected to the mineral surface lease, he might have recourse to the SRD, however, his objection to the lease did not raise a meritorious ground of appeal from the Board's decision - See paragraph 30.

Cases Noticed:

Talisman Energy Inc. et al. v. Energy Resources Conservation Board (Alta.) et al. (2010), 487 A.R. 377; 495 W.A.C. 377; 2010 ABCA 258, refd to. [para. 8].

Sawyer v. Energy and Utilities Board (Alta.) (2007), 422 A.R. 107; 415 W.A.C. 107; 2007 ABCA 297, refd to. [para. 8].

ATCO Midstream Ltd. v. Energy Resources Conservation Board (Alta.) et al., [2008] A.R. Uned. 91; 2008 ABCA 231, refd to. [para. 9].

ATCO Electric Ltd. v. Energy and Utilities Board (Alta.) (2002), 299 A.R. 337; 266 W.A.C. 337; 2002 ABCA 45, refd to. [para. 9].

Nycan Energy Corp. v. Energy and Utilities Board (Alta.) et al. (2001), 277 A.R. 391; 242 W.A.C. 391; 2001 ABCA 31, refd to. [para. 10].

Kelly et al. v. Energy and Utilities Board (Alta.) et al., [2008] A.R. Uned. 28; 2008 ABCA 52, refd to. [para. 10].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 20].

Clifford v. Ontario (Attorney General) et al. (2009), 256 O.A.C. 354; 312 D.L.R.(4th) 70; 2009 ONCA 670, refd to. [para. 20].

Moll v. College of Alberta Psychologists (2011), 510 A.R. 48; 527 W.A.C. 48; 2011 ABCA 110, refd to. [para. 20].

Johnston et al. v. Energy and Utilities Board (Alta.) (1997), 200 A.R. 321; 146 W.A.C. 321 (C.A.), refd to. [para. 23].

Counsel:

S.C. Fluker, for the applicant;

G.D. Perkins and T.L. Grimoldby, for the respondent, Alberta Energy Resources Conservation Board;

J.N. Craig and L.A. Goldbach, for the respondent, Shell Canada Limited.

This application for leave to appeal was heard on May 17, 2011, by Conrad, J.A., of the Alberta Court of Appeal, who delivered the following reasons for decision at Calgary, Alberta, on May 26, 2011.