Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., (1976) 9 N.R. 115 (SCC)

JudgeLaskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson and de Grandpré, JJ.
CourtSupreme Court (Canada)
Case DateMarch 11, 1976
JurisdictionCanada (Federal)
Citations(1976), 9 N.R. 115 (SCC);[1976] CarswellNat 434;[1978] 1 SCR 369;1976 CanLII 2 (SCC);68 DLR (3d) 716;9 NR 115;AZ-78110022;[1976] FCJ No 118 (QL);[1976] SCJ No 118 (QL);[1976] ACS no 118

Com. for Justice v. Nat. Energy Bd. (1976), 9 N.R. 115 (SCC)

MLB headnote and full text

Committee for Justice and Liberty et al. v. National Energy Board et al.

Indexed As: Committee for Justice and Liberty Foundation et al. v. National Energy Board et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson and de Grandpré, JJ.

March 11, 1976.

Summary:

This case arose out of two applications to the National Energy Board under s. 44 of the National Energy Board Act, R.S.C. 1970, c. N-6 for a certificate of public convenience and necessity for the construction of an oil and gas pipeline from the Arctic. A predecessor organization of one of the applicants, consisting of a consortium of many oil industry companies, conducted a lengthy feasibility study for the pipeline. The chairman of the National Energy Board immediately prior to his appointment as chairman was president of the Canada Development Corporation, which was a member of the consortium. The chairman was a member of the Management Committee of the consortium. As a member of the consortium two of the major decisions he was involved in making were the ownership and the routing of the pipeline. One of the applicants raised the issue of bias on the part of the chairman and the National Energy Board referred the question to the Federal Court of Appeal under s. 28(4) of the Federal Court Act.

The Federal Court of Appeal held that the chairman should not be disqualified. The Federal Court of Appeal held that the facts should not cause reasonable and right minded persons to have a reasonable apprehension of bias on the part of the chairman on either the question of whether present or future public convenience and necessity required a pipeline or the question of which, if any, applicant should be granted a certificate. The Federal Court of Appeal found that the chairman had no personal interest in fact in the question, noted that two years had passed since his involvement in the project and that the issues were different in the present applications - See paragraphs 58 to 81.

On appeal to the Supreme Court of Canada the appeal was allowed and Laskin, C.J.C., Ritchie, Spence, Pigeon and Dickson, JJ., held that the chairman should be disqualified from hearing the applications because of a reasonable apprehension of bias. Laskin, C.J.C., stated that the function of the National Energy Board under s. 44 of the National Energy Board Act was a quasi-judicial one, which must be performed in accordance with the rules of natural justice - See paragraph 17. Laskin, C.J.C., stated that the chairman could not be said to be free of a reasonable apprehension of bias on his part when he had a hand in developing and approving important underpinnings of the application of one of the applicants - See paragraph 26. Laskin, C.J.C., stated that the Federal Court of Appeal was in error in considering relevant the questions of the capacity in which the chairman participated in the consortium, whether he had a personal interest in the matter and the time which had passed since his participation - See paragraphs 20 to 24. Laskin, C.J.C., disagreed with the conclusion of the Federal Court of Appeal that the issues were not the same between the considerations of the consortium and the National Energy Board - See paragraphs 25 to 26.

de Grandpré, J., dissenting, Martland and Judson, JJ., concurring, would have dismissed the appeal and agreed with the reasons of the Federal Court of Appeal. de Grandpré, J., stated that the National Energy Board was not a quasi-judicial tribunal or court and that the rules of bias which would apply to a court could not be applied to it - See paragraph 48. Further, he stated that such boards are expected to be staffed by people with expertise in the field. Such people could not be disqualified because of a preconceived view about a policy matter so long as there was no prejudgment of issues of fact in a particular case - See paragraph 47.

Administrative Law - Topic 1206

Classification of power or function - Functions classified as quasijudicial - Licencing authority - National Energy Board function of issuing of certificate of public convenience and necessity under s. 44 of the National Energy Board Act, R.S.C. 1970, c. N-6 - Supreme Court of Canada held that the National Energy Board in considering an application under s. 44 of its act has a quasijudicial function which it must discharge in accordance with the rules of natural justice - See paragraphs 17 and 48.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Reasonable apprehension or likelihood of bias - Immediately prior to his appointment as chairman the chairman of the National Energy Board as president of the Canada Development Corporation was a member of a study group for the oil industry and a member of its management committee, which was to determine the feasibility of an oil and natural gas pipeline from the Arctic, including the ownership and routing of the line - Subsequently, two applications were made to the National Energy Board under s. 44 of the National Energy Board Act, R.S.C. 1970, c. N-6, for a certificate of public convenience and necessity with regard to the pipeline - One of the applicants was a successor to the study group - After objection by some parties to the chairman sitting on the hearing because of a reasonable apprehension of bias the National Energy Board referred the matter to the Federal Court of Appeal for a ruling - The Supreme Court of Canada held that there was a reasonable apprehension of bias on the part of the chairman and that he should be disqualified - See paragraphs 1 to 31.

Courts - Topic 4084

Federal court - Jurisdiction - Federal Court of Appeal - Reference from National Energy Board under s. 28(4) of the Federal Court Act, R.S.C. 1970 (2d supp.), c. 10 - National Energy Board referred to the Federal Court of Appeal the question whether the chairman of the National Energy Board should be disqualified because of a reasonable apprehension of bias - Federal Court of Appeal held that the question was one of law and of jurisdiction which could properly be heard by the Federal Court of Appeal under s. 28(4) of the Federal Court Act - See paragraphs 61 to 62.

Cases Noticed:

Ghirardosi v. Minister of Highways for British Columbia, [1966] S.C.R. 367, appld. [para. 30].

Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833, appld. [para. 30].

Szilard v. Szasz, [1955] S.C.R. 3, appld. [para. 30]; refd to. [para. 75].

Russell v. Duke of Norfolk and others, [1949] 1 All E.R. 109, refd to. [para. 43].

R. v. Picard et al. (1968), 65 D.L.R.(2d) 658, folld. [para. 45].

Tomko v. N.S. Labour Relations Board et al. (1975), 9 N.S.R.(2d) 277, folld. [para. 45].

Ex parte The Angliss Group (1969-70), 122 C.L.R. 546; 43 A.L.J.R. 150 (H. Ct.), refd to. [para. 47].

New Hampshire Milk Dealers Association v. New Hampshire Milk Control Board (1967), 222 A.(2d) 194, refd to. [para. 47].

R. v. Botting, [1966] 2 O.R. 121, refd to. [para. 62].

Statutes Noticed:

Canada Development Corporation Act, S.C. 1971, c. 49, sect. 6(1) [para. 5].

Federal Court Act, R.S.C. 1970 (2d supp.), c. 10, sect. 28(4) [para. 61].

National Energy Board Act, R.S.C. 1970, c. N-6, sect. 10 [para. 17]; sect. 14(2) [para. 16]; sect. 22 [para. 15]; sect. 454 [para. 14].

Counsel:

Ian Binnie and R.J. Sharpe, for the appellants;

Hyman Soloway, Q.C. and R.D. Mcgregor, for the National Energy Board;

G.W. Ainslie, Q.C., for the Attorney General of Canada;

D.M.M. Goldie, Q.C., for Canadian Arctic Gas Pipelines Ltd.;

R.J. Gibbs, Q.C. and G.J. Gorman, Q.C., for Foothills Pipelines Ltd.;

John Hopwood, Q.C., for Alberta Gas Trunk Line Co. Ltd.;

W.G. Burke-Robertson, Q.C., for Alberta Gas Trunk Line (Canada) Ltd.;

B.A. Crane, for Trans-Canada Pipelines Ltd.;

J.R. Smith, Q.C., for Alberta Natural Gas Co. Ltd.

This appeal was heard by the Supreme Court of Canada on March 8, 9 and 10, 1976. Judgment was delivered by the Supreme Court of Canada on March 11, 1976, and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 31.

de GRANDPRE, J. - dissenting, see paragraphs 32 to 57.

RITCHIE, SPENCE, PIGEON and DICKSON, JJ., concurred with LASKIN, C.J.C.

MARTLAND and JUDSON, JJ., concurred with de GRANDPRE, J.

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